SCHOOL  OF  LAW 

UNIVERSITY  OF  CALIFORNIA 

Los  Angeles 

GUT  OF 

Roscoe  Pound 


l^^j 


CASES    ON    EQUITY 
JURISDICTION 


IN  TWO  VOLUMES 


EDITED  WITH  SUNDRY  NOTES  AND  REFERENCES 


BY 

JAMES  BROWN  SCOTT 

A.M.   (HAltVARD)  ;  J.U.D.   ( HEIDELBERG) 

SOLICITOR    FOR    THE    DEPARTMENT    OF    STATE 

PROFESSOR      OF      INTERNATIONAL      LAW      IN      THE      GEORGE 

WASHINGTON    UNIVERSITY 

S0METI;ME   PROFESSOR   OF   LAW    IN    COLUMBIA    UNIVERSITY 

IN    THE   CITY   OF    NEW    YORK 


Not  of  the  letter,  but  of  the  spirit: 
for  the  letter  killeth,  but  the  spirit 
giveth  life.     2  Cor.  2:6. 


VOLUME  I. 


NEW    YORK 

BAKER,  VOORHIS  &  COMPANY 
1906 


J 


T 
1906 


Copyright,  1906 
By  Baker,  Vooriiis  &  Company 


TO 

GEORGE  W.  KIECHWEY 

FRIEND  AND    FORMER 
COLLEAGUE 


7927fi6 


PREFACE 

The  present  collection  is  meant  to  be  a  first  book  in  equity.  It  is, 
therefore,  an  introduction  and  a  guide,  and  as  such  deals  with  funda- 
mental and  underlying  principles.  It  is  believed  that  there  is  a  place 
for  such  a  work,  and  that  a  thorough  familiarity  with  the  essentials  of  the 
subject  should  precede  the  detailed  study  of  the  various  topics  of  equity 
jurisprudence. 

For  this  reason  the  first  four  hundred  pages  of  the  work  deal  with  the 
origin,  the  nature,  the  extent  and  limitations  of  equity,  the  inter-rela- 
tion of  law  and  equity,  and  the  principles  and  maxims  controlling  the 
administration  of  equity.  The  cases  selected  for  this  part  of  the  work 
do  not  merely  illustrate:  they  develop  the  doctrine,  and  it  is  believed 
that  a  careful  study  of  the  various  cases  composing  this  part  will  prepare 
the  student  to  cross  the  threshold  and  examine  in  detail  with  fulness  of 
knowledge  the  various  phases  of  the  subject. 

It  may  be  a  source  of  surprise  to  some,  and  provoke  not  a  little  criti- 
cism, that  the  maxims  should  be  treated  in  a  work  of  this  kind,  for  a 
maxim  is  supposed  to  be  so  general  in  its  nature  as  to  be  inapplicable  to 
a  specific  state  of  facts.  That  is  perhaps  true  in  common  law  where  the 
maxims  are  wholly  artificial :  it  is  not  true  in  equity  where  the  maxims 
are  natural,  fundamental,  and  express  in  a  happy  form  the  compressed 
wisdom  of  centuries.  If  the  maxim  be  not  a  truth  in  and  for  itself  it 
nevertheless  points  the  way  to  truth.  It  was  therefore  thought  that  a 
collection  of  cases  developing  the  underlying  principles,  eventually  crys- 
talized  into  a  maxim,  would  be  a  genuine  service  to  the  student.  Should 
this  view  be  unjustified  it  is  a  simple  matter  to  skip  this  portion  of  the 
book. 

In  some  instances  the  cases  within  a  section  are  arranged  logically; 
in  others  chronologically,  as  seemed  best  to  suit  the  purpose  in  hand. 
The  old  cases  have  been  constantly  consulted,  following  in  this  respect 
the  advice  of  my  Lord  Coke :  "That  in  reading  of  these  or  any  new 
reports,  he  neglect^  not  in  any  case  the  reading  of  the  old  books  of  years 
reported  in  former  ages,  for  assuredly  out  of  the  old  fields  must  spring 
and  grow  the  new  corn." 


vi  PEEFACE 

Even  a  casual  examination  of  the  book  must  disclose  the  fact  that  a 
constant  and  serious  efiort  has  been  made  to  select  leading  cases,  and  of 
these  leading  cases  to  select  those  decided  by  judges  whose  names  add  an 
additional  weight  to  the  authority  of  the  case.  Law  is  not  a  craft :  it  is 
a  profession,  and  its  history  is  both  ancient  and  honorable.  It  is  felt 
that  association  with  the  illustrious  names  in  equity  may  call  the 
student's  attention  to  the  traditions  of  the  profession.  The  names  of 
Nottingham,  North,  Macclesfield,  Hardwicke,  Thurlow,  Eldon,  Cotten- 
ham,  Westbury,  Cairns,  Sir  William  Page  Wood  (Lord  Hatherley), 
among  the  chancellors;  Sir  Joseph  Jekyll,  Sir  William  Grant,  Lord 
Langilale,  and  Sir  George  Jessel  among  the  Masters  of  the  Rolls,  and  the 
Chancellor  of  Ireland,  Lord  Redesdale,  should  thus  become  familiar  to 
the  student. 

In  our  own  country  the  decisions  of  Chancellor  Desaussure  and  of 
Chancellor  Kent  have  been  freely  drawn  upon.  Indeed  the  collection 
may  seem  at  times  to  be  based  in  large  part  upon  the  masterly,  learned 
and  profound  decisions  of  Chancellor  Kent. 

The  Editor  is  deeply  indebted  to  Mr.  Joshua  R.  Clark,  Jr.,  Assistant 
Solicitor  for  the  Department  of  State,  for  constant  assistance  in  the 
selection  and  annotation  of  cases;  to  Christopher  B.  Wyatt,  Esquire,  of 
the  New  York  Bar,  who  rendered  a  similar  service  in  the  preparation  of 
the  Editor's  cases  on  Quasi-Contracts ;  and  to  Professor  William  C. 
Dennis,  Assistant  Solicitor  for  the  Department  of  State.  There  is  like- 
wise due  a  grateful  acknowledgment  of  library  courtesies  extended  by 
Professor  George  W.  Kirchwey  of  Columbia  University,  and  Dr.  George 
Winfiold  Scott,  Custodian  of  the  Law  Library  of  Congress. 

The  publishers  placed  Judge  Keener's  elaborate  collection  of  cases  at 
the  disposal  of  the  Editor,  and  while  the  present  collection  is  independent 
as  regards  classification,  arrangement  and  selection.  Judge  Keener's 
three  volumes  have  been  freely  laid  under  contribution. 

It  is  perhaps  proper  to  add  that  a  collection  of  cases  on  Equity 
Pleading  will  be  puldished  shortly.  This  volume  will  bo  separate  and 
distinct,  but  may  be  used,  it  is  hoped,  in  connection  with  the  jiresent 
collection. 

Recalling  tlw  advi<'e  of  Lord  Coke  that  the  old  books  of  the  law  be 
not  neglected,  the  Ivlitor  niipropriatos  the  concluding  remarks  of  an  apt 
addrcs/i  to  "llic  gentle  reader"  prefixed  to  Sir  Thomas  Ireland's  Abridge- 
ment of  Dyer's  Reyjorts: 

"You    have  iieen  lately  pleased  to  accept  of  a   former  peece  of  his. 


PREFACE  vii 

which  imboldeneth  me  to  present  you  with  this  further  fruit  of  his 
labors  in  the  like  nature,  for  the  generall  good  of  the  Common»wealth. 
If  any  errors  have  passed  the  Presse,  blame  the  Printers;  I  humbly 
conceive  I  have  more  reason  to  be  sorry  for  that  than  yourself." 

And,  finally,  should  any  fellow-worker  in  the  fields  of  Equity  stand 
aghast  at  the  crowd  of  familiar  faces  that  rush  upon  him  as  he  turns  the 
pages  of  the  present  collection,  he  is  referred  to  the  lines  of  Mr.  Rudyard 
Kipling  that  so  deftly  disclose  the  wiles  of  casebook  making: 

When  'Onier  smote  'is  bloomin'  lyre, 

He'd  'eard  men  sing  by  land  an'  sea ; 
An'  what  he  thought  'e  might  require, 

'E  went  an'  took — the  same  as  me! 

The  market-girls  an'  fishermen, 

The  shepherds  an'  the  sailors,  too, 
They  'eard  old  songs  turn  up  again. 

But  kep'  it  quiet — same  as  you! 

They  knew  'e  stole ;   'e  knew  they  knoAved. 

They  didn't  teU,  nor  make  a  fuss. 
But  winked  at  'Omer  down  the  road, 

An'  'e  winked  back — the  same  as  us! 

Thus  does  the  spirit  of  Poesy  illumine,  for  one  brief  moment,  law  and 
equity. 

James  Brown  Scott. 
September  1,  1906. 


CONTENTS  OF  VOLUME  I. 

PART   I. 

Origin,  Nature,  Extent,  and  Limitations  of  Equity  Jurisdiction.  .  1 

CHAPTER  I. 

Origin,  Growth,  and  Development  of  Equity 1 

CHAPTER  11. 

Equity  Jurisdiction  is  Exclusive,  Concurrent  or  Auxiliary 31 

Sec.  1.  Exclusive  Jurisdiction   31 

Sec.  2.  Concurrent  Jurisdiction    -±1 

Sec.  3.  Auxiliary  Jurisdiction 45 

CHAPTER  III. 

Grounds  of  Equity  Jurisdiction 58 

Sec.  1.  No  Legal  Right  or  Remedy 58 

Sec.  2.  Inadequacy  of  Legal  Right 86 

(a)  Inadequacy  of  Damages 86 

(h)  Impracticability  of  legal  remedy 97 

Sec.  3.  Discovery  as  a  Source  of  Equity  Jurisdiction 113,  45 

Sec.  4.  Jurisdiction  over  Part  is  Jurisdiction  over  the  Whole.  . . .  113 

Sec.  5.  Multiplicity  as  a  Ground  of  Jurisdiction 124 

CHAPTER  IV. 

Fundamental  Principles  and  Maxims  Controlling  the  Administra- 
tion of  Equity 133 

Sec.  1.  General  Principles 133 

Equity  will  not  act  when  there  is  a  legal  remedy — unless 

the  remedy  is  inadequate  or  doubtful 133 

Equity  will  not  be  ousted  because  law  courts  have  adopted 

an  equitable  remedy 138 

Equity  acts  according  to  established  rules 145 

Equity  acts  only  on  a  property  right 149 


X  CONTENTS 

Copyrights — Patents — Franchises    160 

Right   of   Privacy 178 

Equity  criminal  jurisdiction 208 

Libel  or  slander 228 

Sec.  2.  Maxims  of  Equity 233 

(a)  Equity  acts  in  personam 233 

(h)  There  is  no  right  without  a  remedy 255 

(c)  He  who  seeks  equity  must  do  equity 264 

(d)  He  who  seeks  equity  must  come  with  clean  hands.  278 

(e)  Equity  follows  the  law 288 

(f)  Equity  looks  to  the  intent  rather  than  to  the  form.  300 
(fir)  Equity   regards  that  as  done  which  ought  to  be 

done   310 

(h)  Equity  imputes  an  intent 324 

(i)    Where  the  equities  are  equal,  the  one  prior  in  time 

prevails    329 

(;')  Where  the  equities  are  equal,  the  law  prevails.  ..  .   340 

(1-)  Equality  is  equity 360 

(Z)    Equity  aids  the   vigilant 377 


CHAPTER  V. 

Equitable  Rights    399 

Se(  .  1.  Accident 399 

Sec.  2.  Mistake    430 

Sec.  3.  Fraud    455 

Sec.  4.  Notice 498 

Sec.  5.  Estoppel 553 

Sec.  6.  Conversion,  Reconversion,  Election 594 


PART  11. 

Remedies  642 

CHAPTER  I. 

In.J  UNCTIONS   642 

Rkc.  1.  Waste   642 

Sec.  2.  Trespass  679 

Sec.  3.  Nuisance   717 

Si:c.  4.  Lai!(i|{   Displtes    763 


TABLE  OF  CASES 


A.  B.  V.  J.  R 

Abrahall  v.  Biidd 

Ackroyd  i\   Smithson 

Agnes  Bale's  Case 

Allen  V.  Dingley 

Allen  V.  Imlett 

Alleyn  v.  Alleyn 

Allfrey  v.  Allfiey 

Allison,  ex  parte 

Andrews  v.  Andrews 

Andrews  v.  Frierson 

Anonymous 

Anonymous 

Anonymous 

Anonj'nious 

Anonymous 

Anonymous 

Anonymous 

Anonymous 

Atkinson  v.  Leonard 

Atkinson   v.   Miller 

Att'y-Gren'l  v.  Fitzsimmons 

Att'y-Gen'l  v.  Manchester 

Baines  v.   Baker 

Barnsley  v.  Powell 

Barrington,  In  re 

Barrow  v.  Rhinelander 

Basset  v.  Nosworthy 

Bateman  v.  Hotchkin 

Bawdes  v.  Amhurst 

Beard  v.  Nutthall 

Bedford  v.  Backhouse 

Bernard's  Case 

Berry  v.  Mutual  Insurance  C< 

Bewick  v.  Whitfield 

Blades  v.  Blades 

Blake  v.  Hungerford 

Blandy  v.  Widmore 

Bodly  V  • 

Bold  V.  Corbett 

Boulton  r.  Bull  > 

Brace    v.    Duchess    of    IMarl- 

borough 
Bracebridge  v.  Bracebridge 


80 

Bradish  v.  Gee 

636 

059 

Brady  v.  Waldron 

601 

G21 

Brandlyn  i\  Ord 

501 

97 

Brandreth  v.  Lance 

228 

253 

Breverton's  Case 

80 

65 

Brewer  v.  Herbert 

425 

598 

Brown  v.  Allen 

363 

394 

Bryant  v.  Peek 

493 

222 

Bunn  V.  Winthrop 

301 

447 

Burgess  v.  Wheate 

58 

108 

Burgess  v.  Wheate 

316 

363 

Burrowes  v.  Lock 

559 

133 

Bush  t'.  Boutelle 

317 

133 

Butler  V.  Buckingham 

67 

299 

Buxton  V.  Snee 

290 

365 

403 

Cadman  v.  Horner 

284 

655 

Calhoun  v.  Millard 

388 

660 

Campyn  Pynell's  Case 

250 

138 

Cannel  v.  Buckle 

100 

308 

Carfoot  V.  Carfoot 

594 

724 

Carleton  v.  Bridgman 

253 

721 

Carter  ii.  Carter 

345 

Casborne  v.  Scarfe 

33 

720 

Cave  V.  Cave 

517 

419 

Champernoon  i\  Gubbs 

259 

677 

Chesterfield  v.  Janssen 

455 

469 

Child  V.  Stephens 

365 

340,  498 

Clare  i\  Bedford 

584 

676 

Clark  V.  Abbot 

331 

458 

Clarke  v.  Franklin 

628 

300 

Clench  i\  Witherly 

304 

530 

Company  of  Stationers'  Case 

160 

646 

Connolly  i->.  Branstler 

583 

0.       331 

Coosaw  Mining  Co.  v.  South  Caro 

~ 

676 

lina 

729 

535 

Corning  v.  Lowerre 

734 

329 

Cotes  V.  Preston 

252 

326 

Coulson  V.  White 

679 

278 

Coulson  V.  White 

720 

301 

County  of  Warren  i\  Marcy 

529 

163 

Courthope  v.  IMapplesden 

684 

Cowell  r.  Edwards 

42 

330. 350 

Cow]>er  V.  Cowper 

296 

100 

Craig  r.  Leslie 

611 

TABLE  OF  CASES 


Crockford  r.  Alexander 
Croton  Turnpike  Co.  v.  Ryder 
Crouch  V.  Martin 
Crowder  v.  Robinson 
Curteis  v.  Wormald 
Cuthbert  v.  Peacock 

Dalston  v.  Coatsworth 
Davie  v.  Beardsham 
Deacon  v.  Smith 
Deeth  v.  Hale 
Dempsie  v.  Darling 
Dering  v.  Winchelsea 
Dillon  V.  Heller 
Doherty  v.  Allman 
Dolliver  v.  Dolliver 
Douglass  V.  Wiggins 
Draper  v.  Borlace 

Earlom  v.  Saunders 
Edmunds  v.  Povey 
Edwards  v.  West 
Ellison  V.  Moffatt 
Emanuel  College  v.  Evans 
Emperor    of    Austria    v.    Day 

Kossuth 
Erhardt  v.  Boaro 
Evroy  v.  Nicholas 
Ex  parte  Allison 
Ex  parte  Greenway 
Ex  parte  King 
Eyre  v.  Burmester 

FiiMiiing  V.  Dunham 
Farrant  v.  Lovcl 
Fletcher  v.  Ashburner 
Ford  r.  Hoskins 
Frederick  v.  Frederick 
Freeman  v.  Goodham 
Frost  17.  Beekman 
Fry  V.  Porter 
Fulton  r.   l.oftis 

(Inrcejon,  In  re 
(Jiirdnor  v.  TruHtees 
(inrHon  v.  fireon 
(Joe  t'.  Pritchard 
(Jetchcll  V.  .Tcwott 
(lilbert  v.  SJinwermnn 
(lillcHpic  V.  Moon 
(;..d<Ii.rd   r.  r;.,(ldard 


685 

Gosling  i\  Dorney 

364 

f         168 

Grafton  v.  Hilliard 

719 

82 

Gravenor  v.  Rake 

255 

252 

Great  Falls  Mfg.  Co.  v.  Worster 

241 

632 

Greaves  ii.  Tofield 

235 

325 

Gieen  v.  Smith 

313 

Greenhill  v.  Greenhill 

595 

407 

Greenway,  Ex  parte 

413 

310,594 

Gregory  v.  Gregory 

390 

327 

Gress  v.  Evans 

54G 

641 

Grigby  v.  Cox 

66 

735 

Guidot  t\  Guidot 

600 

282, 367 

Gyles  V.  Wilcox 

161 

246 

Gynn  v.  Edmonds 

553 

664 

493 

Hale  V.  Hale 

656 

667 

Hamilton  v.  Cummings 

104 

556 

Hamilton  v.  Worsefold 

680 

Hansard  v.  Robinson 

412 

637 

Hanson  v.  Keating 

274 

344 

Harniss  v.  Bulpitt 

738 

604 

Harris  v.  Pepperell 

449 

387 

Harrison  v.  Forth 

500 

31 

Harrison  v.  North 

418 

y    & 

Hartop  V.  Hartop 

253 

173 

Hawkins  v.  Taylor 

345 

704 

Hawley  c.  Clowes 

663 

586 

Heard  v.  Stanford 

293 

222 

Heath  v.  Rydley 

254 

413 

Hedges  v.  Dixon  County 

298 

265 

Henderson  v.  N.  Y.  C.  R.  R.  Co. 

707 

515 

Henderson  t\  Vaulx 

88 

Hennessy  r.  Carmony 

752 

271 

Highwayman's  Case 

279 

660 

Hills  V.  University  of  Oxford 

160 

606 

Hobbs  V.  Norton 

554 

257 

Hobson  V.  Trevor 

75 

311 

HolderstafTe  v.  Saunders 

209 

145 

Hole  V.  Harrison 

42 

533 

Hollingshead's  Case 

377 

145 

Hord  V.  Baugli 

112 

486 

Hovenden  v.  Annesley 

299 

llovenden  i\  Annesley 

381 

77 

Howard  V.  MofTatt 

269 

740 

Howell  V.   Baker 

471 

70 

11  net  V.  Fletcher 

378 

11!) 

1  Inning  v.   Ferrers 

557 

101 
7  .">(') 

llunsden  v.  Chcyney 

555 

■i:i7 

/)/  /•(■  IJariiiigton 

677 

l')77 

hi  n:  (Jarcclon 

77 

TABLE  OF  CASES 


In  re  Read  &  Huggonson 
Ireson  v.  Dcnn 

•Jackson  v.  Hammond 
Jeffreys  v.  Jeffreys 
Jerome  v.  Ross 
Jersey  City  P'nt'g  Co.  v. 
Jesus  College  v.  Bloome 
Joan,  Queen  of  England  v 
John  Horsnionger's  Case 

Kane  v.  Vanderburgh 
Kemp  r.  Pryor 
Kennoule  v.  Bedford 
King,  Ex  parte 
King  V.  Arundel 
King  V.  Blundaville 
King  V.  Stuart 
King  V.  Twine 
Kirrington  v.  Astey 
Klie  V.  Von  Broock 
Kopper  V.  Dyer 


Lake  v.  Gibson  367 

Lambton  v.  Mellish  744 
Xiammont's  Heirs  v.  Bowly's  Heirs  433 

Lancy  v.  Randlett  409 

Lanoy  v.  Athol  374 

Lansdowne  v.  Lansdowne  650 

Lawes  v.  Bennet  602 
Leather    Cloth    Co.    v.    American 

Leather  Co.  171 

Legh  V.  Legh  83 

Le  Neve  v.  Le  Neve  536 

Lennon  v.  Napper  103 

Littleton  v.  Burgess  218 

Livingston  v.  Hubbs  470 

Livingston  v.  Livingston  689 

Livingston  r.  Van  Ingen  164 

Loker  v.   Rolle  259 

Low  V.  Bouverie  565 

Lowndes   v.  Bettle  697 

Lowther  v.  Carleton  501 
Lynch  v.  Metropolitan  El.  R.  Co.     124 

Lynch  v.  Sumrall  116 

McCormick  v.  Grogan  241 

McGowin  v.  Remington  90 

McMullen  r.  Hoffman.  280 

Mackreth    r.    Symmons  71 

Manning  v.  Manning  147 

Margrave  v.  Le  Hooke  265 


226 

Marvel  v.  Ortlip 

269 

Massi  V.  Lavine 
Llaxwell  V.  Mountacute 

415 

Mayor  v.  Pilkington 

303 

Mayor  v.  Slaughter 

692 

Maytin  v.  Hoper 

Cassidy 

768 

Megod's  Case 

115 

,642 

Merchants'  Nat.  Bank  v.  Paine 

.  Bishop 

208 

Methodist    Episcopal     Church 

233 

Jacques 
Meux  V.  Cobley 

661 

INIichigan  v.  R.  R.  Co. 

141 

Milkman  v.  Ordway 

364 

Minturn  v.  Seymour 

265 

Mitchell  V.  Dors 

406 

Mogg  V.  Mogg 

646 

Mollineux  v.  Powell 

712 

Mortimer  v.  Cottrell 

81 

Mountain  Copper  Co.  v.  U.  S. 

324 

Murray  v.  Ballou 

668 

Murray  v.  Lylburn 

400 

Mynn  v.  Cobb 

Neilson  v.  McDonald 
Nelthrop  v.  Hill 
Newly  V.  Chamberlaine 
Newton  v.  Swazey 
Nicholls  V.  Nieholls 
Northern  Counties  t\  Whipp 


Ocean  City  Assn.  v.  Schurch 
Ord  V.  Johnston 
Ormonde  t'.  Kynersley 
Osgood  V.  Franklin 

Packington's  Case 

Parker  v.  Dee 

Parker  v.  Lilly 

Parsons  v.  Welles 

Pavesich    v.    New    England    Life 

Ins.  Co. 
Pearce  v.  Creswick 
Pearne  v.  Lisle 
Peek  V.  Peek 
Penn  v.  Lord  Baltimore 
Penny  v.  Martin 
Peter  v.  Rich 
Petetson  v.  Shelby 
Phelps  V.  Sage 
Phillips  V.  Phillips 
Phillips  V.  Phillips 


561 
286 
461 
210 
258 
364 
64 
130 

08 
665 
589 
119 
302 
682 
679 
664 
681 
759 
520 
526 
144 

482 
361 
258 
109 
481 
353 

215 

40 

653 

422 

649 

113 

83 

35 

194 
117 

86 
463 
236 
454 

41 
646 

34 
333 
511 


TABLE  OF  CASES 


Pickering  v.  Kelling  300 

Pierson  v.  Hutchinson  411 

Pillsworth  V.  Hopton  681 

Plumb  V.  Fluitt  543 

Pope  V.  Onslow  265 

Powell  f.  Powell  419 

Powers'  Appeal  264 

Prentice  v.  Janssen  639 

Proof  r.  Hines  479 

Pusey  V.  Desbouvrie  430 

Pusey  V.  Pusey  86 

Rau  V.  Von  Zedlitz  487 

Read  &  Huggonson,  In  re  226 

Rees  V.  \Yatertown  2G0 

Reigal  v.  Wood  4G6 
Reynolds   v.  Burgess  Sulphite 

Co.  45,113 

Rice  V.  Rice  334 

Rich  V.  Sydenham  278 

Roberson  v.  Folding  Box  Co.  178 

Robinson  v.  Patterson  587 

Rolt  V.  Lord  Somerville  647 

Roscarrick  v.  Barton  32 

Ross  V.  Conway  474 

Ross  V.  Singleton  579 

Roswell's  Case  256 

Rowles  V.  Rowles  404 

Rushnier  v.  Polsue  &  Alfiere  746 

Russell  &  Wife  v.  251 

Salt  i;.  Chattaway  630 

Saull  V.  Browne  212 

Savage  v.  Foster  576 
Scudaniore  v.  Scudamore          315,596 

Seeley  v.  Jago  635 

Sherly  v.  Fagg  343 

Sherry  v.  Perkins  766 

Hhiibrick  v.  Yuerard  687 

Shuttlcworth  v.  Laycock  264 

Sibley  v.  Baker  371 

Simon  Brit's  Case  98 
Simmons  Creek  Coal  Co.  v.  Doran  549 

Sir  Simeon  Stewart's  Case  306 

Skelton  v.  Skelton  656 

Smith  V.  Chixton  625 

Smith  V.  Clay  379 

Smith  XI.  Collyer  683 

Soltau  V.  Delield  717 


Sourwine  v.  Supreme  Lodge  320 

Springhead  Spinning  Co.  v.  Riley  763 

State  V.  Ohio  Oil  Co. 

Steel  V.  Dixon 

Sterry  v.  Arden 

Stevens  v.  Beekman 

Strawberry   Valley   Cattle   Co. 

Chipman 
Swaine  v.  Railway  Co. 
Sweeny  v.  Williams 


Teasdale  v.  Teasdale 
Thallhimer  v.  Brinckerhoff 
Thomas  v.  Oakley 
Thynn  v.  Thynn 
Toller  V.  Carteret 
Toilet  V.  Toilet 
Townsend  v.  Kilmurrey 
Turner  v.  Turner 

Underwood  v.  Swain 

United  States  v.  Kirkpatrick 

Usqe's  Case 


Vicksburg     Waterworks 
Vicksburg 


Co. 


Wakeryng  v.  Baillie 

Warmstrey  v.  Tanfield 

Watson  V.  Hunter 

Watson  V.  Sutherland 

Watts  V.  Ball 

Watts  V.  Creswell 

Waj't  V.  Carwithen 

Werner  v.  Rawson 

Wheeler  v.  Smith 

Wheelock  i\  Noonan 

White  V.  Love  joy 

Whitfield  v.  Bewit 

Whitfield  V.  Fausset 

Wicknuin  v.  Robinson 

Wilcocks  i;.*  Wilcocks 

William  Sysel's  Case 

Williams  v.  Day 

Williams  v.  N.  Y.  C.  R.  R.  Co. 

Willie  V.  Lugg 

Wollstoncroft  r.  Long 

Woml)ell  V.  Belasyse 

Wood  V.  Mann 

Wood  V.  Midgley 


731 
374 
502 
688 

712 
743 
141 

558 
85 
685 
457 
235 
420 
288 
211 

404 

392 

99 


169 

655 
74 
642 
134 
292 
584 
307 
450 
444 
94,711 
415 
674 
409 
73 
324 
399 
646 
706 
266 
288 
654 
507 
462 


CASES  ON  EQUITY  JURISDICTION 


PART  I. 

OEIGIN,  NATURE,  EXTENT,  AND  LIMITATIONS  OF  EQUITY 

JUEISDICTION/ 


CHAPTER  I. 

ORIGIN,  GROWTH,  AND  DEVELOPMENT  OF  EQUITY 
JURISDICTION. 

What  is  Equity?  4^  ^^^' 

Ec[uity  is  that  system  of  justice  which  was  administered  by  the  High  Court    f^f  P  y  \ 

of  Chancc'r\   in  J>iiirlaiui  in  the  exercise  nf  its  extraordinary  jurisdictijgn.  ^-  .j^  ^jf^ 

This  definition  is  rather  sug<,'estive  tlian  precise;  and  invites  inquiry  rather 
than  answers  it.     But  this  must  necessarily  be  so.     Equity,  in  its  technical  and 
scientific  legal  sense,  means  neither  natural  justice  nor  even  all  that  portion  of 
natural  justice  which  is  susceptible  of  being  judicially  enforced.     It  has,  when  ^    * -*^ 
employed  in  the  language  of  English  law,  a  precise,  definite  and  limited  signifi-  — 

cation,  and  is  used  to  denote  a  system  of  justice  which  was  administered  in  a 
particular  court — the  nature  and  extent  of  which  .system  cannot  be  defined  in 
a  single  sentence,  but  can  be  understood  and  explained  only  by  studying  the 
historj'  of  that  court,  and  the  principles  upon  which  it  acts.  In  order  to  begin 
to  understand  what  equity  is,  it  is  necessary  to  understand  what  the  English 
High  Court  of  Chancery  was,  and  how  it  came  to  exercise  what  is  known  as 
its  extraordinary  jurisdiction.  E_veix_true  definition  of  eqiiity  must,  therefore, 
be,  to   a  greater  or   less   extent,   a   history. — Bispham,   Principles   of  Equity^ 

(Tni"ed:y,c.  i. 

"By  Juridical  Equity  is  meant,  a  systematic  appeal  for  relief  from  a 
cramped  administration  of  defective  laws  to  the  disciplined  conscience  of  a 
competent  magistrate,  applying  to  the  special  circumstances  of  defined  and 
limited  classes  of  civil  cases  the  principles  of  natural  justice,  controlled  in  a 
measure  as  well  by  considerations  of  public  policy  as  by  established  precedent, 
and  by  positive  provisions  of  law." — Phelps,  Juridical  Equity  §  143. 

In  the  Doctor  and  Student  (Dial.  1,  chap.  10),  equity  is  thus  described: 
"In  some  cases  it  is  necessary  to  leave  the  words  of  the  law,  and  to  follow 
what  reason  and  justice  requireth,  and  to  that  intent  equity  is  ordained; 
that  is  to  say,  to  temper  and  mitigate  the  rigor  of  the  law.  *  *  *  And  so 
it  appeareth  that  equity  taketh  not  away  the  very  right,  but  only  that  that 
seemeth  not  to  be  right  by  the  general  words  of  the  law.     ♦     ♦     »     Equity  is 

'Lack  of  space  has  n^ade  it  necessary  to  omit  from  these  extracts  the  various 
citations  made  by  the  different  authors.  The  serious  minded  student  may  easily 
".      obtain  them  by  referring  to  the  original  works. 


2  WHAT  IS  EQUITY? 

righteousness  that  eonsidereth  all  the  particular  circumstances  of  the  deed, 
which  is  also  tempered  with  the  sweetness  of  mercy."  In  Grounds  and  Rudi- 
ments (pp.  5,  6)  it  is  said:  "As  summum  jus  summa  est  injuria  since  it 
cannot  consider  circumstances,  and  as  equity  takes  in  all  the  circumstances 
of  the  case,  and  judges  of  the  whole  matter  according  to  good  conscience, 
this  shows  both  the  use  and  excellency  of  equity  above  any  prescribed  law. 
*  *  *  Equity  is  that  which  is  commonly  called  equal,  just,  and  good,  and 
is  a  mitigatioti  and  moderation  of  the  covimon  law  in  some  circumstances, 
either  of  the  matter,  person,  or  time;  and  often  it  dispenseth  with  the  law 
itself.  »  *  ♦  The  matters  of  which  equity  holdeth  cognizance  in  its  abso- 
lute power  are  such  as  are  not  remediable  at  law:  and  of  them  the  sorts  may 
be  said  to  be  as  infinite  almost  as  the  different  afTairs  conversant  in  human 
life.  *  *  *  Equity  is  so  extensive  and  various  that  every  particular  case 
in  equity  may  be  truly  said  to  stand  upon  its  own  particular  circumstances ; 
and  therefore,  under  favor,  I  apprehend  precedents  not  of  that  great  use  in 
equity  as  some  would  contend,  but  that  equity  thereby  may  possibly  be  made 
too  much  a  science  for  good  conscience."  In  Finch's  Law  (p.  20)  it  is  said: 
"  The  nature  of  equity  is  to  amplify,  enlarge,  and  add  to  the  letter  of  the 
law";  and  in  the  treatise  called  Eunomus  (Dial.  3  §  60)  it  was  called  "the 
power  of  moderating  the  summum  jus."  Lord  Bacon  adds  the  weight  of  his 
authority  to  this  view,  saying  in  one  place :  "  Habent  similiter  Curias 
Pra-toriae  potestatem  tam  subveniendi  contra  rigorem  legis,  quam  supplendi 
defectum  legis"  (the  court  of  chancery  in  like  manner  has  the  power  as  well 
of  relieving  against  the  rigor  of  the  law  as  of  supplying  its  defects)  ;  and  in 
another:  "Chancery  is  ordained  to  supply  the  law,  and  not  to  subvert  the 
law."  Lord  Kames  states  the  same  theory  without  any  limitation  (Kames's 
Eq.,  Introd.,  pp.  12,  15)  :  "  It  appears  now  clearly  that  a  court  of  equity 
commences  at  the  limits  of  the  common  law  and  enforces  benevolence  where 
the  law  of  nature  makes  it  our  duty.  And  thus  a  court  of  equity,  accom- 
panying the  law  of  nature  in  its  general  refinements,  enforces  every  natural 
duty  that  is  not  provided  for  at  the  common  law.  *  »  *  ^  court  of  equity 
boldly  undertakes  to  correct  or  mitigate  the  rigor,  and  what  in  a  proper  sense 
may  be  termed  the  injustice  of  the  common  law."  In  the  well-known  treatise 
called  Fanblanque  on  Equity,  the  author  says  (b.  1,  chap.  1,  §  3)  :  "  So 
there  will  he  a  necessity  of  having  recourse  to  natural  principles,  that  what 
is  wanting  to  the  finite  may  be  supplied  out  of  that  which  is  infinite.  And. 
this  is  properly  what  is  called  equity,  in  opposition  to  strict  law.  «  *  * 
And  thus  in  chancery  every  particular  case  stands  upon  its  own  particular 
circumstances;  and  although  the  common  law  will  not  decree  against  the 
genera!  rule  of  law,  yet  chancery  doth,  so  as  the  example  introduce  not  a 
general  mischief.  Every  matter,  therefore,  that  happens  inconsistent  with 
the  design  of  the  legislator,  or  is  contrary  to  natural  justice,  may  find  relief 
here.  For  no  man  can  be  obliged  to  anything  contrary  to  the  law  of  nature; 
and  indeed,  no  man  in  his  senses  can  be  presumed  willing  to  oblige  another 
to  it.  IJut  if  the  law  hath  determined  a  matter  with  all  its  circumstances, 
equity  cannot  intermeddle."  The  same  large  view  of  equity  has  sometimes 
l)cen  taken  by  the  earlier  judges,  but  not  to  any  considerable  extent  since 
the  Reformation.  The  following  example  will  suffice:  In  Dudley  v.  Dudley, 
Proc.  Ch.  241,  244,  Sir  John  Trevor,  M.  R..  said:  "Now,  equity  is  no  part 
of  the  law,  but  a  moral  virtue  which  qualifies,  moderates,  and  reforms  the 
rigor,  hardness,  and  edge  of  the  law,  and  is  a  universal  truth.     It  does  also 


EQUITY  IN  THE  COMMON  LAW  COURTS  3 

assist  the  law  where  it  is  defective  and  weak  in  the  constitution,  which  is 
the  life  of  the  law;  and  defends  the  law  from  crafty  evasions,  delusions,  and 
new  subtleties  invented  and  contrived  to  evade-  and  delude  the  common  law, 
whereby  such  as  have  undoubted  right  are  made  remediless.  And  this  is  the 
office  of  equity,  to  protect  and  support  the  common  law  from  shifts  and  con- 
trivances against  the  justice  of  the  law.  Equity,  therefore,  does  not  destroy 
the  law,  nor  create  it,  but  assists  it."  I  shall  end  these  citations  by  a  quota- 
tion from  Chancellor  D'Aguesseau,  the  great  French  jurist  (ffiuvres,  vol.  1, 
p.  138)  :  "  Premier  objet  du  legislateur,  d6positaire  de  son  esprit,  compagne 
inseperable  de  la  loi,  Tequit^  ne  peut  jamais  §tre  contraire  &  la  loi  m6me. 
Tout  ce  que  blesse  cette  equite,  veritable  source  de  toutes  les  lois,  ne  resiste 
pas  moins  i  la  justice." — Pomeroy,  Equity  Jurisprudence,  ('Srd  ed.)  vol.  1, 
p  48,  note. 

Equity  in  the  Common  Law  Courts. 

We  have  seen  that  the  Common  Law  was  founded  on  certain  fixed  prin- 
ciples, and  that  it  was  only  by  set  forms  of  procedure  that  rights  could  be 
enforced  aiid  secured,  or  civil   injuries  redressed. 

It  has  ahvays  been  held  by  the  great  oracles  of  the  law  that  the  principles 
of  the  Common  Law  are  founded  on  reason  and  equity ;  and  so  long  as  the 
Common  Law  was  in  the  course  of  formation,  and  therefore  continued  to  be  a 
lex  non  scripta,  it  was  capable — as  indeed  it  has  ever  continued  to  be,  to  some 
extent — of  not  only  being  extended  to  cases  not  expresslj^  provided  for  but 
which  were  within  the  spirit  of  the  existing  law,  but  also  of  having  the  prin- 
ciples of  equity  applied  to  it  by  the  judges  in  their  decisions,  as  circumstances 
arose  which  called  for  the  application  of  such  principles.  This  was  more 
especially  open  to  the  judges  as  regards  defences  to  actions  which  were  not 
founded  on  writs,  and  were  therefore  under  their  own  control.  But  in  course 
of  time,  a  series  of  precedents  was  established  by  the  decisions,  or  responsa, 
as  Bracton  calls  them,  of  the  judges,  which  were  considered  as  of  almost 
equally  binding  authority  on  succeeding  judges  as  were  the  acts  of  the  legis- 
lature; and  it  became  difficult  to  make  new  precedents  without  interfering 
with  those  which  had  already  been  established.  Hence  (though  new  prece- 
dents have  ever  continued  to  be  made)  the  Common  Law  became,  to  a  great 
extent,  a  lex  scripta,  positive  and  inflexible;  so  that  the  rule  of  justice  could 
not  accommodate  itself  to  every  case  according  to  the  exigency  of  right  and 
justice. — 8pe)we^  Equitable  Jurisdiction  of  The  Court  of  Chancery,  vol.  1, 
Part  2,  B.  1,  C.  1,  pp.  321—322. 

The  Chancellor, 

Before  dealing  in  detail  with  the  reference  of  petitions  to  the  Chancellor, 
which  led  to  the  conferment  upon  him  of  an  extraordinary  jurisdiction  anal- 
ogous to  that  of  the  King,  Council  and  Parliament,  it  will  be  convenient  to 
consider  shortly  the  position  of  the  Chancellor  in  and  before  the  reign  of 
Edward  III.  His  office  as  the  King's  Secretary,  Chaplain  of  his  Chapel,  and 
Keeper  of  his  Seal  was  a  very  ancient  office.  Coke  declares  that  it  had  existed 
from  extreme  antiquity,  and  it  certainly  existed  before  the  Conquest.  By 
reason  of  his  position^as  custodian  of  the  Great  Seal  he  was  the  head  of  the 
office  in  which  the  King's  Charters  were  inrolled,  and  whence  the  original  writs 
were  issued,  in  the  manner  already  described.  All  the  petitions  to  Parliament 
and  the  Council  passed  through  this  office,  and  the  records  concerning  them 


4  THE   CHANCELLOR 

were  there  inrolled,  and,  Mhere  relief  was  granted  upon  them,  as  for  instance 
that  the  judges  should  proceed  with  an  action,  it  was  usually  carried  into 
effect  by  a  writ  close  out  of  the  Chancery.  From  the  time  Becket  held  the 
oflBce  it  became  of  importance  and  dignity  next  after  that  of  the  Justiciar  only. 
William  Fitz  Stephen,  one  of  Becket's  Clerks,  describes  the  Chancellor  as 
sealing  all  the  King's  ordinances  and  being  present,  even  though  unsummoned, 
at  all  his  councils.  Nothing  was  done  without  the  Chancellor's  consent  and 
advice  either  in  the  Curia  or  in  the  Exchequer.  It  does  not  appear  that  he 
regularly  held  any  court  of  his  own  before  the  reign  of  Edward  II.,  and  the 
antiquity  assigned  by  Coke  and  Blackstone  to  his  Common  Law  jurisdiction 
is  far  too  gi'eat.  Fleta,  writing  in  the  reign  of  Edward  I.,  merely  refers  to 
his  control  over  the  issue  of  writs,  and  says  nothing  of  his  holding  any  Court. 
He  does  say,  however,  that  recognizances  and  contracts  were  inrolled  in  the 
Chancery,  and  judicial  writs  issued  to  the  Sheriffs  to  enforce  them  out  of  the 
Chancery,  just  as  by  the  judges  themselves.  If  the  recognizance  were  newlj-  en- 
rolled, when  the  creditor  came  to  complain  of  the  non-observance  of  the  agree- 
ment, immediate  execution  issued,  but  if  it  were  not,  the  debtor  was  summoned 
on  a  certain  day  to  show  cause  why  execution  should  not  bo  had,  and  if  he 
appeared  and  said  nothing  in  point,  or  failed  to  appear,  the  writ  to  the  Sheriff 
issued.  "  Ex  hac  quidem  constitutione,"  adds  the  writer,  "  oriuntur  brevia 
judicialia  in  cancellaria  sicut  coram  ipsis  justiciariis."  The  Statute  of  Mer- 
chants 13  Edward  I.  which  created  the  Statute  Staple,  expressly  reserved  the 
power  of  the  Chancellor  and  Justices  to  take  recognizances  in  form  by  law, 
usage  and  manner  provided.  Perhaps  in  the^se  inquiries  may  be  found  the  first 
beginning  of  the  Chancellor's  separate  jurisdiction.  It  is  clear  that  by  the 
date  now  considered  the  Clianccllor  was  looked  upon  as  a  judicial  personage. 
Becket,  Chancellor  under  Henry  II.,  was  panegyrised  as  "  qui  regni  leges  can- 
cellat  iniquas,  et  mandata  pii  principis  sequa  facit,"  and  Neville,  Chancellor 
under  Henry  III.,  is  referred  to  as  "  singulis  sua  jura,  pra?cipue  pauperibus, 
juste  reddens  et  indilite."  He  was  too,  as  we  have  seen,  the  President  of  the 
Council,  which  was  greatly  occupied  with  judicial  work,  and  since  the  fall  of 
Hubert  dc  Burgh  and  the  abolition  of  the  Justiciarship,  he  was  in  fact  '  head 
of  the  law  '  in  the  kingdom.  So  important  had  his  office  become  that,  from  the 
reign  of  Henry  III.  onwards,  continual  demands  were  made  that  he  should  be 
elected  by  the  Council  or  Parliament,  or  with  their  assent.  He  had  indeed 
already  become,  what  Bacon's  Selden  calls  him,  '  the  kingdom's  darling.' 
The  Statute  28  Edward  I.  c.  5  expressly  associates  the  Chancellor  with  the 
Judges  and  directs  him  and  tlicm  to  follow  the  King,  "  so  that  he  may  have  at 
all  times  near  him  some  sages  in  law  Avhich  be  able  duly  to  order  all  such 
matters  as  shall  come  into  tlie  Court  at  all  times  when  need  shall  require." 

It  is  not  then  surprising  that  when  the  King  or  the  Council  appointed  a 
delegate  or  commission  to  hear  and  decide  jietitions,  the  Chancellor  should  have 
been  almost  invariably  chosen,  with  or  without  assistants,  marked  out  as  he 
wnH  for  Hiu-h  duties,  not  only  by  his  connection  witli  tlie  adininistration  of 
the  law,  with  the  King's  grants  and  mandates  under  seal,  and  with  the  presen- 
tation and  recording  of  the  fx't  it  ions,  hut  also  by  his  position  as  a  great 
cleric.  an<I,  in  most  casts,  the  head  of  the  chief  Ecclesiastical  Court  in  the 
kingdom,  for  Huch  he  usually  was.  since  by  reason  of  that  position  he  could 
lay  Hpecial  claim  to  a  knowledge  of  what  'conscience,'  'right,'  'justice,' 
*  hf>np'4ty  '  or  '  law  and  rcnson,' — the  terms  employed  in  the  references  to 
him — demanded. — Ktrly,  Hislonj  of  JJijuity,  ('.  II. 


GEOWTII  AND  DEVELOPMENT  OF  CHANCERY  5 

Growth  and  Development   of  Chancery. 

The  i)erinanent  C'ouuuil  under  the  early  Norman  Kings  consisted  of  the 
great  officers  of  state, — the  Chancellor,  the  great  Justiciary,  the  Lord  Treas- 
urer, the  Lord  Steward,  the  Chamberlain,  the  Earl  Marshal,  the  Constable, 
and  any  other  persons  whom  the  King  chose  to  appoint ;  and  of  the  two  Arch- 
bishops, who  claimed  a  right  to  form  a  part  of  every  Council,  public  or  pri- 
vate. Besides  these  were  present,  at  times,  the  Comptroller  of  the  Household, 
the  Chancellor  of  the  Exchequer,  the  Judges,  the  King's  Serjeant,  &e.  This 
body  was  the  '  Aula  Regia,'  or  '  Curia  Regis,'  a  Court  which  has  been  described 
in  various  and  at  first  sight  contradictory  terms.  Thus  it  has  been  called 
the  highest  Law  Court,  the  Ministry  of  the  King,  a  Legislative  Assembly,  &c. 
The  apparent  inconsistency  of  these  descriptions  vanishes  on  closer  inspection, 
and  throws  great  light  on  mediaeval  history.  For  the  '  Curia  Regis  '  possessed 
every  attribute  which  has  been  ascribed  to  it.  It  was  the  executive.  It  was 
also  a  Law  Court.  It  certainly  took  part  in  acts  of  legislation.  Still,  at  the 
time  of  its  existence  it  was  no  anomaly,  since  to  the  men  of  the  eleventh 
century,  not  the  combination  but  the  severance  of  judicial  and  executive  pow- 
ers would  have  appeared  anomalous.  The  '  Aula  Regia  '  was  in  fact  neither 
more  nor  less  than  the  Court  of  the  King;  and  he  who  was  at  once  the  ruler 
and  judge  of  the  whole  nation,  exercised  the  powers  which  he  possessed,  either 
directly  (and  this  he  did  to  a  greater  extent  than  modern  students  are  apt  to 
suppose),  or  indirectly,  through  the  instrumentality  of  his  great  officers. 
Hence  the  authority  of  the  '  Curia  Regis  '  was  as  immense  and  as  undefined 
as  that  of  the  Monarch.     *     ♦     «• 

The  rise  of  the  Courts  of  Law  made  more  definite  the  position  of  the  Coun- 
cil, but  the  province  of  its  authority  was  not  marked  out  in  the  manner  which 
would  seem  the  most  natural  to  a  modern  reader.  It  appears  indeed  at  first 
sight  a  reasonable  supposition,  that  the  powers  given  to  the  Law  Courts  were 
taken  away  from  the  Council;  that,  in  other  words,  the  Council  (which  is 
nothing  more  than  the  '  Curia  Regis '  when  separated  from  the  judicial 
tribunals,)  and  the  Law  Courts,  occupied  distinct  provinces.  Such  an  assump- 
tion is,  nevertheless,  confuted  by  facts.  Long  after  the  erection  of  the  Law 
Courts  the  Council  exercised  considerable,  though  peculiar,  judicial  authority. 
This  anomaly  is  easy  to  explain.  The  exercise  of  judicial  power  is  a  Royal 
prerogative.  In  every  law  court  the  King  is  supposed  present.  Originally  he 
doubtless  really  presided,  and  administered  justice,  surrounded  by  his  court 
(ciiria).  The  pressure  of  business  soon  made  it  impossible  for  him  to  perform 
all  his  duties  in  his  own  person,  and  he  gradually  delegated  his  authority  to 
the  regular  judges.  This  delegation,  however,  did  not  strip  the  Crown  of  its 
prerogative.  Though  the  King  ordinarily  exercised  his  judicial  powers  through 
judges,  who  acted  according  to  set  laws  and  precedents,  it  was  still  his  right 
to  try  suits,  either  on  his  own  authority  or  through  the  great  men  of  his 
Council.  It  could,  indeed,  scarcely  be  supposed  that  when  the  King's  Bench 
exercised  its  jurisdiction,  as  being  ihe  "  Curia  Regis  coram  ipso  rege,'  the  King 
could  not  decide  causes  in  that  assembly,  which  was  emphatically  the  'Curia 
Regis.' 

This  more  direct  exertion  of  the  King's  power  was  naturally  and  of  neces- 
sity called  into  action,  when  for  any  reason  the  Law  Courts  were  unable  to 
give  justice.  They  might  fail  to  grant  redress,  either  because,  to  use  the 
expressive  words  of  various  ordinances,  '  there  was  too  great  might  on  the  one 
side,  and  too  great  unmight  on  the  other,'  or  because  the  grievance  referred 


6  GEOWTH  AND  DEVELOPMENT  OF  CHANCERY 

to  them  was  one  which  the  technical  rules  of  law  did  not  meet.  In  each  case 
the  person  aggrieved  would  naturally  apply  for  aid  to  the  King  and  his  Coun- 
cil. In  both  instances  the  King  would,  among  other  counsellors,  specially 
consult  the  Chancellor,  his  great  legal  officer.  Hence  the  close  connection 
between  the  Chancellor  and  the  Council — a  connection  which,  from  the  effects 
it  produced,  requires  particular  notice.  At  a  period  when  the  '  Aula  Regia  ' 
still  constituted  one  individual  body,  one  officer,  the  Chancellor,  had,  as  his 
peculiar  duty,  to  affix  the  great  seal  to  writs,  grants,  &c.  Hence,  when  the 
division  of  powers  took  place,  he  became  the  head  of  a  Court,  before  which  were 
brought  all  questions  affecting  the  royal  grants.  As  president  of  this  Court, 
he  may  be  considered  to  have  exercised  a  jurisdiction  as  independent  of  the 
King's  Council  as  did  the  Barons  of  the  Exchequer,  or  the  Justices  of  the 
King's  Bench.  Yet  even  in  his  capacity  of  Common  Law  Judge,  the  Chancellor 
was  connected  somewhat  more  closely  with  the  Council  than  were  tlie  other 
judges,  both  because  the  passing  of  grants  was  a  prerogative  kept  strictly  in 
the  Crown's  own  hands,  on  the  e.%ercise  of  which  the  advice  of  the  whole  Coun- 
cil was  frequently  taken,  and  because,  when  the  Council  caused  writs  to  be 
issued,  it  was  forced  to  act  through  the  Chancellor.  He  however,  occupied 
another  position  besides  that  of  Judge  in  a  particular  Court.  As  the  greatest 
legal  officer  of  the  realm,  after  the  office  of  Grand  Justiciary  was  abolished; 
as  an  Ecclesiastic  consulted  by  the  King  on  all  questions  of  conscience;  as, 
from  his  possession  of  the  great  seal,  having  knowledge  of  every  gi-ant  made  by 
the  Crown,  he  was  the  Council's  most  influential  Law  Officer. 

Thus  before  he  began  to  exercise  an  equitable  jurisdiction  of  his  own,  he 
must,  as  may  be  certainly  assumed,  have  been  consulted  about  every  legal 
matter  debated  in  Council.  All  therefore  who  needed  redress,  Avhich  the  Law 
Courts  could  not  afford,  brought  their  complaints,  either  before  the  Council, 
or  before  the  Chancellor,  as  the  Council's  highest  official.  Hence  the  union 
between  the  Chancellor's  and  the  Council's  jurisdiction.     *     *     * 

The  clearest  view  of  the  Council's  relation  to  the  Chancellor  is  given  by  the 
ordinance  8  Ed.  1.  Its  main  object  is  '  that  no  petitions  may  come  before  the 
King  and  his  Council,  but  by  the  hands  of  his  said  Chancellor  and  other  chief 
^linisters.  So  that  the  King  and  his  Council  may,  without  the  load  of  other 
business  attend  to  the  Great  business  of  his  realm,  and  of  other  foreign  Coun- 
tries.' 

Here  again  the  Chancellor  is  seen  acting  as  a  member  of  the  Council ;  and 
the  language  of  the  Proclamation  suggests  the  reason  of  the  change,  which, 
before  the  reign  of  Richard  II,  had  taken  place  in  the  relative  positions  of 
the  great  law  officer,  and  the  deliberative  body  to  which  it  belonged.  As  the 
Law  Courts  had  branched  off  from  the  '  Curia  Regis,'  so  the  Chancery  began 
to  Hcparate  from  tlie  Council.  The  exact  steps,  by  which  the  process  of  sepa- 
ration was  carried  out,  cannot  be  known.  But  it  may  readily  be  supposed  that 
the  pressure  of  other  business,  and  a  distaste  to  the  niceties  of  legal  discussion, 
)nade  the  Council  glad  to  first  refer  matters  of  law  to  the  Chancellor,  and  next 
to  leave  them  entirely  to  his  decision.  Whatever  the  steps  of  the  change,  a 
great  nltc-ation  took  place,  and  before  the  death  of  Edward  III,  the  Chancellor 
decided  matters  of  equity  on  his  own  authority,  and  gave  assistance  to  those 
hindered  by  vif)leiiee  from  ol)taining  aid  throngli  the  regular  course  of  law. 
The  date  of  his  establishment  as  a  .Imlgr  of  Equity  is  approximately  marked 
by  a  proclamation  of  Edward  III,  wliich  referred  matters  of  grace  to  the 
Chancellor's  decision.     Though,  from  al>out  tliis  date,  the  Chancellor  exercised 


GROWTH  AND  DEVELOPMENT  OF  CHANCEEY  7 

an  independent  jurisdiction,  the  Council's  power  suffered  no  diminution.  Both 
the  Council  and  the  Chancellor  aided  those  whom  Common  Law  was  unable  to 
protect.  Both  the  Chancellor  and  the  Council  enforced  obligations  binding  in 
conscience  though  not  in  law.  Attacks  made  on  the  power  of  the  Chancellor 
are  attacks  on  the  authority  of  the  Council, — and  the  Council  in  Chancery  can 
hardly  be  distinguished  from  the  Chancellor's  own  Court. — Dicey,  The  Privy 
Council,  p.  7,  and  p.  12  ct  seq. 

Having  thus  ascertained  what  is  the  true  nature  and  character  of  Equity 
Jurisprudence  as  it  is  administered  in  countries  governed  by  the  common  law, 
it  seems  proper,  before  proceeding  to  the  consideration  of  the  particulars  of 
that  jurisdiction,  to  take  a  brief  review  of  its  origin  and  progress  in  England, 
from  which  country  x'\merica  has  derived  its  own  principles  and  practice  on  the 
same  subject.  It  is  not  intended  here  to  speak  of  the  Common  Law  Jurisdic- 
tion of  the  Court  of  Chancery,  or  of  any  of  its  speciallj-  delegated  jurisdiction 
in  exercising  the  prerogatives  of  the  Crown,  as  in  cases  of  infancy  and  lunacy: 
or  of  its  statutable  jurisdiction  in  cases  of  bankruptcy.  The  inquiry  will 
mainly  relate  to  its  equitable,  or,  as  it  is  sometimes  called,  its  extraordinary 
jurisdiction. 

The  origin  of  the  Court  of  Chancery  is  involved  in  the  same  obscurity  which 
attends  the  investigation  of  many  other  questions  of  high  antiquity  relative 
to  the  common  law.  The  administration  of  justice  in  England  was  originally 
confided  to  the  Aula  Regis,  or  great  Court  or  Council  of  the  King,  as  the  Su- 
preme Court  of  Judicature,  which  in  those  early  times  undoubtedly  adminis- 
tered equal  justice  according  to  the  rules  of  both  law  and  equity,  or  of  either, 
as  the  case  might  chance  to  require.  When  that  court  was  broken  into  pieces, 
and  its  principal  jurisdiction  distributed  among  various  courts,  the  Common 
Pleas,  the  King's  Bench,  and  the  Exchequer,  each  received  a  certain  portion, 
and  the  Court  of  Chancery  also  obtained  a  portion.  But  at  that  period  the 
idea  of  a  Court  of  Equity  as  contradistinguished  from  a  Court  of  Law  does  not 
seem  to  have  subsisted  in  the  original  plan  of  partition,  or  to  have  been  in  the 
contemplation  of  the  sages  of  the  day.  Certain  it  is  that  among  the  earliest 
writers  of  the  common  law,  such  as  Bracton,  Glanvill,  Britton,  and  Fleta, 
there  is  not  a  syllable  to  be  found  relating  to  the  equitable  jurisdiction  of  the 
Court  of  Chancery.  Fleta  indeed  mentions  the  existence  of  a  certain  office 
called  the  Chancery,  and  that  to  the  office  '  it  belongs  to  hear  and  examine  the 
petitions  and  complaints  of  plaintiffs,  and  to  give  them,  according  to  the  nature 
of  the  injuries  shown  by  them,  due  remedy  by  the  icrits  of  the  King.' 

That  the  Court  of  Chancery,  in  the  exercise  of  its  ordinary  jurisdiction,  is  a 
court  of  very  high  antiquity,  cannot  be  doubted.  It  was  said  by  Lord  Hobart 
that  it  is  an  original  and  fundamental  court,  as  ancient  as  the  kingdom  itself. 
The  name  of  the  court.  Chancery  (Chancellaria),  is  derived  from  that  of  the 
presiding  ofiicer,  Chancellor  (Cancellarius) ,  an  officer  of  great  distinction, 
whose  office  may  be  clearly  traced  back  before  the  Conquest,  to  the  times  of 
the  Saxon  kings,  many  of  whom  had  their  chancellors.  Lord  Coke  supposes 
that  the  title  'Cancellarius'  arose  from  his  cancelling  (a  cancellando)  the 
king's  letters  patent  when  granted  contrary  to  law,  which  is  the  highest  point 
of  jurisdiction.  But  the  office  and  name  of  Chancellor  (Mr.  Justice  Black- 
stone  has  observed)  Avas  certainly  known  to  the  courts  of  the  Roman  emperors, 
where  it  originally  seems  to  have  signified  a  chief  scribe,  or  secretary,  who 
was  afterw-ards  invested  with  several  judicial  powers,  and  a  general  superin- 
tendency  over  the  rest  of  the  officers  of  the  prince.    From  the  Roman  emperors 


8  GRO\YTH  AND  DEVELOPMENT  OF  CHANCERY 

it  passed  to  the  Roman  Church,  ever  emulous  of  imperial  state;  and  hence 
every  bishop  has  to  this  day  his  chancellor,  the  principal  judge  of  his  con- 
sistory. And  when  the  modern  kingdoms  of  Europe  were  established  upon  the 
ruins  of  the  empire,  almost  every  state  preserved  its  chancellor,  with  diflerent 
jurisdictions  and  dignities,  according  to  their  different  constitutions.  But  in 
all  of  them  he  seems  to  have  had  the  supervision  of  all  charters,  letters,  and 
such  other  public  instruments  of  the  Crown  as  were  authenticated  in  the  most 
solemn  manner;  and  therefore  when  seals  came  in  use  he  always  had  tlie 
custody  of  the  king's  great  seal. 

It  is  not  so  easy  to  ascertain  the  origin  of  the  equitable  or  extraordinary 
jurisdiction  of  the  Court  of  Chancery.  By  some  persons  it  has  been  held  to  be 
as  ancient  as  the  kingdom  itself.  Others  are  of  a  different  opinion.  Lambard, 
who  (according  to  Lord  Coke)  was  a  keeper  of  the  Records  of  the  Tower,  and 
a  Master  in  Chancery,  says  that  he  could  not  find  that  the  chancellor  held  any 
Court  of  Equity,  nor  that  any  causes  were  drawn  before  the  chancellor  for  help 
in  equity  before  the  time  of  Henry  IV. ;  in  whose  days,  by  reason  of  intestine 
troubles,  feoffments  to  uses  did  first  begin,  as  some  think.  Lord  Coke  says  it 
has  been  thought  that  this  Court  of  Equity  began  in  the  reign  of  Henry  *V., 
and  increased  in  the  reign  of  Henry  VI.;  but  that  its  principal  growth  was 
during  the  chancellorship  of  Cardinal  Wolsey,  in  the  reign  of  Henry  VIII. 
And  he  adds,  in  another  place,  that  we  find  no  cases  in  our  books  reported 
before  the  reign  of  Henry  VI.  Lord  Coke's  known  hostility  to  the  jurisdiction 
of  the  Court  of  Chancery  would  very  much  abate  our  confidence  in  his  re- 
searches, if  they  were  not  opposed  by  other  pressing  authorities. 

Lord  Hale's  account  of  the  matter  is  as  follows:  'There  were  many  peti- 
tions referred  to  the  Council  (meaning  either  the  Privatum  Concilium  or 
Legale  Concilium  Regis)  from  the  Parliament;  sometimes  the  answers  to 
particular  petitions,  and  sometimes  whole  bundles  of  petitions  in  Parliament 
which  by  reason  of  a  dissolution  could  not  be  there  determined,  were  referred, 
in  the  close  of  the  Parliament,  sometimes  to  the  Council  in  general,  and  some- 
times to  the  chancellor.  And  this  I  take  to  be  the  true  original  of  the  Chan- 
cery Jurisdiction  in  matters  of  equity,  and  gave  rise  to  the  multitude  of 
equitable  causes  to  be  there  arbitrarily  determined.'  And  he  afterwards  adds: 
'Touching  the  equitable  jurisdiction  (in  chancery),  though  in  ancient  time 
no  such  thing  was  icnown,  yet  it  hath  now  so  long  obtained,  and  is  so  fitted  to 
the  disposal  of  lands  and  goods,  that  it  must  not  be  shaken,  though  in  many 
things  fit  to  be  bounded  or  reformed.  Two  things  might  possibly  give  original 
[jurisdiction],  or  at  least  much  contribute  to  its  enlargement.  (1)  The  usual 
committing  of  particular  petitions  in  Parliament,  not  there  determined,  unto 
the  detorminntion  of  the  chancellor,  which  was  as  frequent  as  to  the  Council; 
and  swell  a  foundation  being  laid  for  a  jurisdiction,  it  was  not  difficult  for  it 
to  actpiire  more.  (2)  By  the  invention  of  uses  (that  is,  trusts),  which  were 
frequent  and  necessary,  especially  in  the  times  of  dissension  touching  the 
Crown.  In  those  proceedings  the  chancellor  took  himself  to  be  the  only  dis- 
penser of  I  he  king's  conscience;  and  possibly  the  Council  was  not  called,  either 
as  assistants  or  co-judges.'  We  shall  ])resently  see  how  far  these  suggestions 
have  Ijcen  established. 

Lord  Hardwicke  seems  to  have  accounted  for  tlie  jurisdiction  in  another 
manner.  The  clinncery  is  the  grand  Officina  Justitia-,  out  of  which  all  original 
writs  issue  under  tlie  great  seal,  returnable  into  the  Courts  of  Common  Law, 
to   fonnd   |)roccc(lings  in  actions  cotiipcicnt,  to  tlie  Connnon   Law  Jurisdiction. 


GROWTH  AND  DEVELOPMENT  OF  CHANCERY  9 

The  chancellor  therefore  (according  to  Lord  Hardwicke)  was  the  most  proper 
judge  whether  upon  any  petition  so  referred  such  a  writ  could  not  be  framed 
and  issued  by  him  as  might  furnish  an  adequate  relief  to  the  party;  and  if  he 
found  the  common-law  remedies  deficient,  he  might  proceed  according  to  the 
extraordinary  power  committed  to  him  bj^  tlie  reference:  Ne  Curia  Regis  defi- 
ceret  in  justitia  exercenda.  Thus  the  exercise  of  the  equitable  jurisdiction  took 
its  rise  from  his  being  the  proper  olhcer  to  whom  all  applications  were  made 
for  writs  to  gi'ound  actions  at  the  common  law;  and  from  many  cases  being 
brought  before  him  in  which  that  law  would  not  afi'ord  a  remedy,  and  thereby 
being  induced  tlirough  necessity  or  compassion  to  extend  a  discretionary 
remedy.  If  (Lord  Hardwicke  added)  this  account  of  the  original  of  the 
jurisdiction  in  equity  in  England  be  historically  true,  it  will  at  least  hint  one 
answer  to  the  question  how  the  forum  of  common  law  and  the  forum  of  equity 
came  to  be  separated  with  us.  It  was  stopped  at  its  source,  and  in  the  first 
instance;  for  if  the  case  appeared  to  the  chancellor  to  be  merely  of  equity,  lie 
issued  no  original  writ,  without  which  the  Court  of  Common  Law  could  not 
proceed  in  the  cause,  but  he  retained  the  cognizance  to  himself.  The  jurisdic- 
tion then  may  be  deemed  in  some  sort  a  resulting  jurisdiction  in  cases  not 
submitted  to  the  decision  of  other  courts  by  the  Crown,  or  Parliament,  as  the 
great  fountain  of  justice. 

Lord  King  (or  whoever  else  was  the  autlior  of  the  treatise  entitled,  'The 
Legal  Judicature  in  Chancery  stated  ')  deduced  the  jurisdiction  of  the  Court  of 
Chancery  from  the  prerogative  of  the  king  to  administer  justice  in  his  realm, 
being  sworn  by  his  coronation  oath  to  deliver  his  subjects  a>quam  et  rectam 
justitiam.  This  it  was  impossible  for  him  to  do  in  person;  and  therefore  of 
necessity  he  delegated  it,  by  several  portions,  to  ministers  and  officers  deputed 
under  him.  But  inasmuch  as  positive  laws  must  in  their  nature  consist  of 
general  institutions,  there  was  of  necessity  a  variety  of  particular  cases  still 
happening  where  no  proper  or  adequate  remedy  could  be  given  by  the  ordinary 
courts  of  justice.  Therefore  to  supply  this  want,  and  correct  the  rigor  of  the 
positive  law,  recourse  was  had  to  the  king  as  the  fountain  of  justice,  to  obtain 
relief  in  such  cases.  The  method  of  application  was  by  bills  or  petitions  to 
the  king,  sometimes  in  Parliament  and  sometimes  out  of  Parliament,  commonly 
directed  to  him  and  his  Council;  and  the  granting  of  them  was  esteemed  not  a 
matter  of  right,  but  of  grace  and  favor.  When  Parliament  met,  there  were 
usually  petitions  of  all  sorts  preferred  to  the  king;  and  the  distinguishing 
cf  these  petitions  and  giving  proper  answers  to  them  occasioned  a  weight  and 
load  of  business,  especially  when  Parliament  sat  but  a  few  days.  Accordingly 
in  the  8th  of  the  reign  of  Edward  I.  an  ordinance  passed  by  which  petitions  of 
this  sort  were  to  be  referred,  according  to  their  nature,  to  the  chancellor  and 
ihe  justices ;  and  in  matters  of  grace,  to  the  chancellor.  And  if  the  chancellor 
and  others  could  not  do  without  the  king,  then  they  were  to  bring  the  matter 
with  their  own  hands  before  the  king,  to  know  his  pleasure.  So  that  no  peti- 
tions should  come  before  the  king  and  his  Council,  but  by  the  hands  of  the 
chancellor  and  other  chief  ministers.  And  hence  the  writer  deduces  the  eon- 
elusion  that  at  this  time  all  matters  of  grace  were  determinable  only  by  the 
king.  And  he  added  that  he  did  not  find  any  traces  of  a  Court  of  Equity  in 
chancery  in  the  time,  of  Edward  II.,  and  that  it  seemed  to  him  that  the  equity 
side  of  the  court  began  in  the  reign  of  Edward  III.,  when  by  proclamation  he 
referred  matters  of  grace  to  the  cognizance  of  the  chancellor.  And  the  juris- 
diction was  clearly  established  and  acted  on  in  the  reign  of  Richard  II. 


10         GROWTH  AND  DEVELOPMENT  OF  CHANCERY 

Mr.  Justice  Blackstone  seems  to  rely  on  the  same  general  origin  of  the 
jurisdiction  of  chancery,  as  arising  from  the  reference  of  petitions  from  the 
Privy  Council  to  the  chancellor ;  and  also  from  the  introduction  of  uses  of  land, 
about  the  end  of  the  reign  of  Ed^vard  III.  Mr.  Wooddeson  deduces  the  juris- 
diction from  the  same  sdurce,  and  lays  great  stress  on  the  proclamation  of  22 
Edw.  III.;  and  also  on  the  statute  of  36  Edw.  III.  (stat.  1,  ch.  9),  which 
he,  as  well  as  Spelman,  considers  as  referring  many  things  to  the  sole  and 
exclusive  cognizance  of  the  chancellor.  And  he  adds,  that  it  seems  incontro- 
vertible that  the  chancery  exercised  an  equitable  jurisdiction,  though  its 
practice  perhaps  was  not  very  flourishing  or  frequent  through  the  reign  of 
Edward  III. 

But  all  our  juridical  antiquaries  admit  that  the  jurisdiction  of  chancery  was 
established,  and  in  full  operation,  during  the  reign  of  Richard  II.;  and  their 
opinions  are  supported  by  the  incontrovertible  facts  contained  in  the  remon- 
strances and  other  acts  of  Parliament.  At  this  period  the  extensive  use  or 
abuse  of  the  powers  of  chancery  had  become  an  object  of  jealousy  with  Parlia- 
ment, and  various  efforts  wei-e  Tnade  to  restrain  and  limit  its  authority.  But 
the  Crown  steadily  supported  it.  And  the  invention  of  the  writ  of  subpoena  by 
John  Waltham,  Bishop  of  Salisbury,  who  was  Keeper  of  the  Rolls,  about  the 
5th  of  Ricliard  II.,  gave  great  efficiency,  if  not  expansion,  to  the  jurisdiction. 
In  the  13th  of  Richard  II.  the  Commons  prayed  that  no  party  might  be 
required  to  answer  before  the  chancellor  or  the  Council  of  the  king  for  any 
matter  where  a  remedy  is  given  by  the  common  law,  unless  it  be  by  writ  of 
scire  facias  in  the  county  where  it  is  found  by  the  common  law.  To  which 
the  king  answered  that  he  would  preserve  his  royalty,  as  his  progenitors  had 
done  before  him.  And  the  only  redress  gi-anted  was  by  Stat.  17  Richard  II., 
ch.  6,  by  which  it  was  enacted  that  the  chancellor  should  have  power  to  award 
damages  to  the  defendant,  in  case  the  suggestions  of  the  bill  were  untrue, 
according  to  his  discretion.  The  struggles  iipon  this  subject  were  maintained 
in  the  subsequent  reigns  of  Henry  IV.  and  V.  But  the  Crown  resolutely  re- 
sisted all  appeals  against  the  jurisdiction;  and  finally,  in  the  time  of  Edward 
IV.,  the  process  by  bill  and  subpoena  was  become  the  daily  practice  of  the 
court. 

Considerable  new  light  has  been  thrown  upon  the  subject  of  the  origin  and 
antiquity  of  the  equitable  jurisdiction  of  the  Court  of  Chancery  by  the  recent 
publication  of  the  labors  of  the  Commissioners  on  the  Public  Records.  Until 
that  period  the  notion  was  very  common  (which  was  promulgated  by  Lord 
Ellfsiiioro)  that  there  were  no  petitions  of  the  chancery  remaining  in  the  office 
<<f  record  before  the  15th  year  of  the  reign  of  Henry  VI.  But  it  now  appears 
that  many  hundreds  have  been  lately  found  among  the  records  of  the  Tower  for 
nearly  fifty  years  antecedent  to  the  period  mentioned  by  Lord  Ellesmere,  and 
commencing  about  the  time  of  the  passage  of  the  statute  of  17  Rich.  II.  ch.  6. 
I'.ut  tliero  is  inucli  reason  to  believe  that  upon  suitable  researches  many  peti- 
tions or  bills  addressed  to  the  chancellor  will  be  found  of  a  similar  character 
during  the  reigns  of  Edward   L,  Edward  11.,  and  Edward  III. 

From  the  proceedings  which  have  l)een  published  by  tiic  Record  Commis- 
sioners it  appears  that  tlu-  cliicf  business  of  the  Court  of  Chancery  in  those 
early  times  did  not  arise  frnm  the  introduction  of  uses  of  land,  according  to 
the  opinion  of  most  writers  on  Uic  subject.  Very  few  instances  of  applications 
to  the  rhancellor  on  such  grounds  occur  among  the  proceedings  of  the  chancery 
during  the  first  four  or  five  reigns  after  the  equitable  jurisdiction  of  the  court 


GROWTH  AND  DEVELOPMENT  OF  CHANCERY  11 

seems  to  have  been  fully  established.  Most  of  these  ancient  petitions  appear 
to  have  been  presented  in  consequence  of  assaults  and  trespasses  and  a  variety 
of  outrages  which  were  cognizable  at  common  law,  but  for  which  the  party 
complaining  was  unable  to  obtain  redress  in  consequence  of  the  maintenance 
and  protection  afforded  to  his  adversary  by  some  powerful  baron,  or  by  the 
sheriff",  or  by  some  ollicer  of  the  county  in  which  they  occurred. 

If  this  be  a  true  account  of  the  earliest  known  exercises  of  equitable  juris- 
diction, it  establishes  the  point  that  it  was  principally  applied  to  remedy 
■defects  in  the  comm.onlaw  proceedings;  and  therefore  that  equity  jurisdiction 
was  entertained  upon  the  same  ground  which  now  constitutes  the  principal 
reason  of  its  interference,  viz.,  that  a  wrong  is  done,  for  which  there  is  no 
plain,  adequate,  and  complete  remedy  in  the  Courts  of  Common  Law.  And  in 
this  way  great  strength  is  added  to  the  opinions  of  Lord  Hale  and  Lord  Hard- 
Avicke,  that  its  jurisdiction  is  in  reality  the  residuum  of  that  of  the  Commune 
Concilium  or  Aula  Regis,  not  conferred  on  other  courts,  and  necessarily  exer- 
■cisable  by  the  Crown  as  a  part  of  its  duty  and  prerogative  to  administer 
justice  and  equitj'.  The  introduction  of  Uses  or  Trusts  at  a  later  period  may 
have  given  new  activity  and  extended  operation  to  the  jurisdiction  of  the 
court,  but  it  did  not  found  it.  The  redress  given  by  the  chancellor  in  such 
■cases  was  merely  a  new  application  of  the  old  principles  of  the  court,  since 
there  was  no  remedy  at  law  to  enforce  the  observance  of  such  uses  or  trusts. 

From  this  slight  review  of  the  origin  and  progress  of  equitable  jurisdic- 
tion in  England,  it  cannot  escape  observation  how  naturally  it  grew  up  in  the 
same  manner,  and  under  the  same  circumstances,  as  the  equitable  jurisdiction 
•of  the  praetor  at  Rome.  Each  of  them  arose  from  the  necessity  of  the  thing 
in  the  actual  administration  of  justice,  and  from  the  deficiencies  of  the  posi- 
tive law  (the  lex  scripta),  or  from  the  inadequacy  of  the  remedies,  in  the 
prescribed  forms,  to  meet  the  full  exigency  of  the  particular  case.  It  was  not 
an  usurpation  for  the  purpose  of  acquiring  and  exercising  power,  but  a  bene- 
ficial interposition,  to  correct  gross  injustice  and  to  redress  aggravated  and 
intolerable  grievances. 

But  be  the  origin  of  the  equity  jurisdiction  of  the  Court  of  Chancery  what  it 
may,  from  the  time  of  the  reign  of  Henry  VL  it  constantly  grew  in  im- 
portance; and  in  the  reign  of  Henry  VIII.  it  expanded  into  a  broad  and  almost 
boundless  jurisdiction  under  the  fostering  care  and  ambitious  wisdom  and  love 
of  power  of  Cardinal  Wolsey.  Yet  ( Mr.  Reeves  observes ) ,  after  all,  notwith- 
standing the  complaints  of  the  Cardinal's  administration  of  justice,  he  has 
the  reputation  of  having  acted  with  great  ability  in  the  office  of  chancellor, 
which  lay  heavier  upon  him  than  it  had  upon  any  of  his  predecessors,  owing  to 
the  too  gi-eat  care  with  which  he  entertained  suits,  and  the  extraordinary 
influ.x  of  business,  which  might  be  attributed  to  other  causes.  Sir  Thomas 
More,  the  successor  to  the  Cardinal,  took  a  more  sober  and  limited  view  of 
Equity  Jurisprudence,  and  gave  public  favor  as  well  as  dignity  to  the  decrees 
of  the  coTirt.  But  still  there  were  clamors  from  those  who  were  hostile  to 
equity  during  his  time,  and  especially  to  the  power  of  issuing  injunctions  to 
judgments  and  other  proceedings,  in  order  to  prevent  irreparable  injustice. 
This  controversy  was  renewed  with  much  greater  heat  and  violence  in  the  reign 
of  James  I.,  upon  thg  point  whether  a  Court  of  Equity  could  give  relief  for  or 
against  a  judgment  at  common  law;  and  it  was  mainly  conducted  by  Lord 
Coke  against,  and  by  Lord  Ellesmere  in  favor  of,  the  chansery  jurisdiction. 
At  last  the  matter  came  directly  before  the  king,  and  upon  the  advice  and 


12  GROWTH  AND  DEVELOPMENT  OF  CHANCERY 

opinion  of  very  learned  lawyers  to  whom  he  referred  it,  his  Majesty  gave  judg- 
ment in  favor  of  the  equitable  jurisdiction  in  such  cases.  Lord  Bacon  suc- 
ceeded Lord  Ellesmere;  but  few  of  his  decrees  which  have  reached  us  are  of 
any  importance  to  posterity.  But  his  celebrated  ordinances  for  tlie  regulation 
of  chancery  gave  a  systematical  character  to  the  business  of  the  court;  and 
some  of  the  most  important  of  them  (especially  as  to  bills  of  review)  still  con- 
stitute the  fundamental  principles  of  its  present  practice. 

From  this  period  down  to  the  time  when  Sir  Heneage  Finch  (afterwaxils 
Earl  of  Nottingham)  was  elevated  to  the  Bench  (in  1673),  little  improve- 
ment was  made  either  in  the  principles  or  in  the  practice  of  chancery;  and 
none  of  the  persons  wlio  held  the  seal  were  distinguished  for  uncommon  attain- 
ments or  learning  in  their  profession.  With  Lord  Nottingham  a  new  era 
commenced.  He  was  a  person  of  eminent  abilities  and  the  most  incorruptible 
integrity.  He  possessed  a  fine  genius,  great  liberality  of  views,  and  a  thorough 
comprehension  of  the  true  principles  of  equity;  so  that  he  was  enabled  to 
disentangle  the  doctrines  from  any  narrow  and  technical  notions,  and  to  ex- 
pand the  remedial  justice  of  the  court  far  beyond  the  aims  of  his  predeces- 
sors. In  the  course  of  nine  years,  during  which  he  presided  in  the  court,  he 
built  up  a  system  of  jurisprudence  and  jurisdiction  upon  wide  and  rational 
foutidations,  which  served  as  a  model  for  succeeding  judges,  and  gave  a  new 
character  to  the  court;  and  hence  he  Jias  been  emphatically  called  '  the  father 
of  Equity.'  His  immediate  successors  availed  themselves  very  greatly  of  his 
profound  learning  and  judgment.  But  a  successor  was  still  wanted,  who  with 
equal  genius,  abilities,  and  liberality  should  hold  the  seals  for  a  period  long 
enough  to  enable  him  to  widen  the  foundation  and  complete  the  structure  begun 
and  planned  by  that  illustrious  man.  Such  a  successor  at  length  appeared  in 
the  person  of  Lord  Hardwicke.  This  great  judge  presided  in  the  Court  of 
Chancery  during  the  period  of  twenty  years ;  and  his  numerous  decisions  evince 
the  most  thorough  learning,  the  most  exquisite  skill,  and  the  most  elegant 
juridical  analysis.  There  reigns  throughout  ail  of  them  a  spirit  of  conscien- 
tious and  discriminating  equity,  a  sound  and  enlightened  judgment  as  rare  as  it 
is  persuasive,  and  a  power  of  illustration  from  analogous  topics  of  the  law 
as  copious  as  it  is  exact  and  edifying.  Few  judges  have  left  behind  them  a 
reputation  more  bright  and  enduring;  few  have  had  so  favorable  an  oppor- 
tunity of  conferring  lasting  benefits  upon  the  jurisprudence  of  their  country; 
and  still  fewer  have  inijnoved  it  by  so  large,  so  various,  and  so  important 
contributions.  Lord  Hardwicke,  like  Lord  IMansfield,  combined  with  his 
judicial  cliaracter  the  still  more  embarrassing  character  of  a  statesman,  and 
in  some  sort  of  a  minister  of  state.  Both  of  them  of  course  encountered  great 
political  opposition  (wlictlier  rightly  or  wrongly  it  is  beside  the  purpose  of 
this  work  to  inquire)  ;  and  it  is  fortunate  for  them  that  their  judicial  labors 
arc  oMibodied  in  solid  volumes,  so  that  when  the  prejudices  and  the  passions 
(jf  ilic  tiiiiis  lire  [)ast  away,  they  may  remain  oi)en  to  the  severest  scrutiny, 
and  claim  from   j)()sterity  a  just  and  unimpeacliable  award.     »     »     * 

In  .America  Kquity  .Jurisprudence  had  its  origin  at  a  far  later  period  than 
tlie  jurisdiclicm  properly  aj)pertaining  to  the  Courts  of  Common  Law.  In 
many  of  the  colonics,  during  their  connection  with  Great  Britain,  it  had  either 
no  existence  at  all,  or  a  very  imperfect  and  irregular  administration.  Even 
since  the  Revolution,  wliich  severed  the  ties  which  bound  us  to  the  parent 
country,  it  has  been  of  slow  growth  and  cultivation;  and  there  are  still  some 
States  in  whose  municijinl   jurisprudence  it  has  no  place  at  all,  or  no  place 


GROWTH  AND  DEVELOPMENT  OF  CHANCERY  13 

a3  a  separate  and  distinct  science.  Even  in  those  States  in  which  it  has  been 
cultivated  with  the  most  success  and  for  the  greatest  length  of  time,  it  can 
fcarcelj'  be  said  to  have  been  generally  studied  or  administered  as  a  system  of 
enlightened  and  exact  principles  until  about  the  close  of  the  eighteenth  cen- 
tury. Indeed  until  a  nuich  later  period,  when  Reports  were  regularly  pub- 
lished, it  scarceh-  obtained  the  general  regard  of  the  profession  lx>yond  the 
purlieus  of  its  immediate  ofhcers  and  ministers.  Even  in  the  State  of  New 
York,  whose  rank  in  jurisprudence  has  never  been  second  to  that  of  any  State 
in  the  Union  (if  it  has  not  been  the  first  among  its  peers)  equity  was  scarcely 
felt  in  the  general  administration  of  justice  until  about  the  period  of  the 
Reports  of  Caines  and  of  Johnson.  And  perhaps  it  is  not  too  much  to  say 
that  it  did  not  attain  its  full  maturity  and  masculine  vigor  until  Mr.  Chan- 
cellor Kent  brought  to  it  the  fulness  of  his  own  extraordinary  learning,  uncon- 
querable diligence,  and  brilliant  talents.  If  this  tardy  progress  has  somewhat 
checked  the  study  of  the  beautiful  and  varied  principles  of  equity  in  America, 
it  has  on  the  other  hand  enabled  us  to  escape  from  the  embarrassing  effects  of 
decisions  which  might  have  been  made  at  an  earlier  period,  when  the  studies 
of  the  profession  were  far  more  limited  and  the  benches  of  America  were 
occasionally,  like  that  of  the  English  Chancery  in  former  ages,  occupied  by  men 
who,  whatever  might  have  been  their  general  judgment  or  integrity,  were 
inadequate  to  the  duties  of  their  stations,  from  their  want  of  learning  or 
from  their  general  pursuits.  Indeed  there  were  often  other  circumstances 
which  greatly  restricted  or  impeded  a  proper  choice;  such  as  the  want  of  the 
due  enjoyment  of  executive  or  popular  favor  by  men  of  the  highest  talents,  or 
the  discouragement  of  a  narrow  and  incompetent  salary. 

The  Equity  Jurisprudence  at  present  exercised  in  America  is  founded  upon, 
co-extensive  with,  and  in  most  respects  conformable  to,  that  of  England.  It 
approaches  even  nearer  to  the  latter  than  the  jurisdiction  exercised  bj-  the 
Courts  of  Common  Law  in  America  approaches  to  the  common  law  as  admin- 
istered in  England.  The  common  law  w^as  not,  in  many  particulars,  applic- 
able to  the  situation  of  our  country  when  it  was  first  introduced.  Whereas 
Equity  Jurisprudence  in  its  main  streams  flows  from  the  same  sources  here 
that  it  does  in  England,  and  admits  of  an  almost  universal  application  in  its 
principles.  The  Constitution  of  the  United  States  has  in  one  clause  conferred 
on  the  National  Judiciary  cognizance  of  cases  in  equity  as  well  as  in  law;  and 
the  uniform  interpretation  of  that  clause  has  been  that  by  cases  in  equity  are 
meant  cases  which,  in  the  jurisprudence  of  England  (the  parent  country),  are 
so  called  as  contradistinguished  from  cases  at  the  common  law.  So  that  in 
the  Courts  of  the  United  States  Equity  Jurisprudence  generally  embraces  the 
same  matters  of  jurisdiction  and  modes  of  remedy  as  exist  in  England. 

In  nearly  all  the  States  in  which  Equity  Jurisprudence  is  recognized  it  is 
now  administered  in  the  modes  and  according  to  the  forms  which  appertain  to 
it  in  England ;  that  is,  as  a  brancli  of  jurisprudence  separate  and  distinct  from 
the  remedial  justice  of  Courts  of  Common  Law.  In  Pennsylvania  it  was  for- 
merly administered  through  the  forms,  remedies,  and  proceedings  of  the 
common  law;  and  was  thus  mixed  up  with  legal  rights  and  titles  in  a  manner 
noteasily  comprehensible  elsewhere.  This  anomaly  has  been  in  a  considerable  v  J  ^' 
degree  removed  by  some  recent  legislative  enactments.  In  some  of  the  States  in 
the  Union  distinct  Courts  of  Equity  are  established ;  in  others  the  powers  are 
exercised  concurrently  with  the  Common  Law  Jurisdiction  by  the  same  tribu- 
nal, being  at  once  a  Court  of  Law  and  a  Court  of  Equity,  somewhat  analogous 


U      REASONS  FOR  APPLYING  TO  THE  CHANCELLOR 

to  the  case  of  the  Court  of  Exchequer  in  England.  In  others  again  no  general 
equity  powers  exist;  but  a  few  specified  heads  of  Equity  Jurisprudence  are  con- 
fided to  the  ordinary  Courts  of  Law,  and  constitute  a  limited  statutable 
jurisdiction. — Htory,  EquUy  Jurisprudence,  (13t/i  cd.) ,  vol.    I,  C.  2. 

Reasons  for  Applying  to  the  Chancellor. 

The  Court  of  Chancery  became  necessary  because   it  was   found   that   the 

Courts  of  Common  Law  were,  from  various  causes,   frequently  unable  to   do 

justice  to  suitors.     This  might  result  from  two  classes  of  reasons:      (1)    from 

,  ,    the  inelasticity  of  its  principles  and  practice;    (2)  from  the  peculiar  situation. 

i       of  the  parties  in  cases  which  could  otherwise  have  been  dealt  with  at  common 

'  '    law, 

The  first  of  these  classes  constitutes  what  came  at  a  later  date  to  be  called 
equitable  matters — cases  to  be  decided  in  Chancery  on  j^rinciples  peculiar  to 
itself,  and  will  be  dealt  with  later. 
J        /     The  second  class  was  not  concerned  in  any  way  with  the  doctrines  of  equity; 

(and,  some  time  towards  the  end  of  the  fifteenth  century,  the  Court  of  Chan- 
cery ceased  to  deal  with  them  altogether.     In  the  early  days  of  that  Court, 
■^  however,  such  cases  formed  by  far  the  principal  bulk  of  the  work  of  the  Court. 

A.'^         Such  matters,  as  has  already  been  pointed  out,  came  within  the  jurisdiction  of 
r~  the  Council.    A  reference  to  the  first  part  of  this  volume  will  show  how  numer- 

iC^    '     ous   such  cases  were,  and  how  varied  the  detail,  though  the  same  principles 
\o,J(iYf  underlay  them  all. 

]  Most  of  these  early  cases  allege  some  special  reason  why  the  Chancellor 
should  interfere,  and  these  allegations  throw  a  useful  light  on  the  principles 
from  time  to  time  guiding  and  influencing  the  Court. 

The  reasons  in  what  I  may  call  the  Council  cases,  that  is,  those  for  which  in 
theory  the  common  law  provided  a  remedy,  are  mostly  concerned  with  the 
power  and  violence  of  the  defendant. 

In  case  5,  we  are  told  that  the  defendants  will  not  be  justified  by  the  sheriff 
of  the  county  against  their  will,  nor  will  they  at  any  time,  unless  the  King 
betakes  himself  against  them  seriously. 

In  case  6,  the  plaintiffs,  who  are  the  constables  of  a  Hundred,  say  that  they 
dare  not  perform  their  office  unless  the  defendants  find  sureties  for  the  peace. 

In  case  10,  the  plaintiff  states  that  no  one  dare  bring  suit  against  the  de- 
fendant, as  the  common  law  demands,  because  of  his  great  maintenance. 

In  other  cases — 21,  2G,  29,  &c. — the  plaintiff  simply  states  that  he  dares  not 
sue  at  common  law. 

In  case  24,  tlie  plaintifT  would  have  sued  at  Lincoln  in  the  King's  Bench, 
but  could  not  find  any  one  who  dared  to  act  as  her  counsel,  for  fear  of  the 
defendant's  malice. 

In  ease  31,  the  plaintiff  says  piteously  that  he  can  never  recover  at  common 
law  because  the  defendant  is  so  rich  and  so  strong  in  friends  in  the  country 
where  he  dwells. 

In  case  35,  it  is  stated  that  no  writs  or  orders  of  the  King  will  bo  obeyed, 
and  no  jurors  will  dare  to  do  tlicir  duty  in  those  parts,  if  the  defendants  are 
not  punisliod. 

In  cjiHc  .'if),  tlio  Chancellor  is  asked  to  interfere,  so  that  the  very  good  laws 
iif  \\\c  King  and  his  nol)le  realm  may  be  honestly  kept,  virtues  exalted,  and 
crimes  and  oi)preflHions  of  the  people  punished  and  chastised. 

In  case  41,  the  defendant  has  so  many  evildoers  confederated  with  hinj,  and 


<i 


EEASONS  FOR  APPLYING  TO  THE  CHANCELLOR       15 

is  of  such  horrible  maintenance,  that  the  plaintiff  cannot  recover  at  common 
law. 

In  case  44,  the  defendants  are  so  great  in  their  countrj',  in  kinsmen, 
alliances,  and  friends. 

In  case  51,  the  defendant  is  so  great  a  maintainer,  extortioner,  and  conducer 
of  inquests  in  his  country,  that  no  one  dare  contradict  him. 

In  case  67,  a  case  of  forcible  entry  and  ouster,  the  plaintiff  merely  says  that 
there  is  no  speedy  remedy  at  common  law. 

In  case  i)4,  the  plaintiff  cannot  sue  at  common  law  because  he  is  employed 
in  defence  of  the  realm;  while  in  case  98  the  plaintiff  asks  for  a  special  assize, 
because  at  the  time  of  the  assizes  he  is  engaged  with  the  Justices  of  Assize  in 
other  counties,  and  so  cannot  sue  in  Yorkshire. 

In  Cal.  i.  xix.,  the  plaintiff  cannot  sue  at  common  law  because  he  is  in 
prison. 

In  many  cases  the  poverty  of  the  plaintiff  is  urged  as  the  sole  reason  why  the 
Chancellor  should  interfere.    See  cases  37,  43,  80,  139,  and  Cal.  i.  xiii.;  ii.  xii. 

In  this  last  case  the  plaintiffs  say  that  they  are  '  so  pouere  that  thay  may 
not  apparay  wyth  the  said  John  in  no  sute  ne  tryall  at  the  lawe.' 

In  Cal.  i.  XXXV.,  the  Friars  IMinors  of  London  say  that  they  are  '  pore  men, 
gretely  endetted,  and  loth  to  spende  on  plec.' 

In  Cal.  i.  xiv.,  the  plaintiffs  are  poor,  and  one  of  them  is  so  ill  that  they 
cannot  sue  at  common  law. 

In  case  73,  the  plaintiff  says  that  the  defendant  absenteth  himself  and  de- 
parteth  from  place  to  place  so  that  she  can  have  no  recovery  nor  remedy 
against  him  at  common  law. 

In  case  110,  the  plaintiffs  say  that  they  can  have  no  remedy  at  common 
law  in  the  King's  absence.  This  case  is  unfortunately  not  dated.  INIr.  Bayley, 
from  Avhose  MS.  transcripts  at  the  Record  Office  I  have  copied  the  bill,  dates 
it  as  '  probably  Henry  V.'  I  have  not  been  able  to  find  the  original,  so  cannot 
express  any  opinion.  There  was  a  Sir  William  Bardolf  at  that  time.  I  confess 
I  cannot  understand  the  allegation;  so  far  as  I  know,  the  issuing  of  writs  and 
the  proceedings  of  the  Common  Law  Courts  were  not  affected  by  the  King's 
absence.  **^ 

«?/  In  case  127  the  plaintiff  wishes  to  recover  against  the  estate  of  one  who    ^    CA- 

\  d^ied  outlawed,  and  whose  goods  consequently  were  forfeited  to  the  Cro^^^l,  ^^ 
whereby  the  plaintiff  was  '  destitute  of  alle  maner  of  remedie  at  the  comune  ^!^ 
lawe.'  vs^Awt)   , 

It  will  be  seen  from   these   illustrations  that  the   rules  laid   down  by   the  """ 

Council  were  not  of  a  very  rigid  nature,  and  that  there  was  some  reason  in  the 
constant  complaint  of  interference  with  the  course  of  common  law.  On  the 
other  hand,  it  is  not  at  all  uncommon  to  find  bills  dismissed  on  the  giound 
that  the  ordinary  tribunals  were  able  to  deal  with  the  matter,  and  if  we 
had  anything  like  a  large  percentage  of  recorded  judgments,  there  is  no  doubt 
we  should  find  that  this  was  very  frequently  done. 

In  certain  pleas  which  were  supposed  to  concern  the  King,  the  allegation 
was  of  a  ditferent  kind. 

In  case  12,  the  Maj'or  and  citizens  of  Chichester  state  that  the  doings  they 
complain  of  are  '  to  their  great  damage,  and  to  the  hindrance  of  the  payment 
of  the  King's  fee-farni  rent.' 

In  ease  15,  the  reason  given  is  'the  contempt  and  prejudice  done  to  the 
King,'  with  regard  to  the  grant  of  some  forfeited  lands. 


16    PRINCIPLES  ON  WHICH  THE  CHANCELLOR  ACTED 

In  case  17,  it  is  '  in  safeguard  of  the  peace  of  the  King,  his  crown,  and 
dignity.'    This  case  is  one  of  violent  assault  on  constables. 

In  case  32,  the  plaintiff  says  that  certain  outrages  are  openly  done  against 
the  King,  his  crown,  and  his  peace. 

In  case  48,  the  ouster  of  an  incumbent,  who  was  presented  by  Richard  II., 
is  said  to  be  the  gi-eat  prejudice,  reproof,  and  damage  of  Henry  IV.  Case  92 
is  similar. 

In  case  81,  the  King's  tenants  complain  of  ejectment,  and  ask  for  a  remedy 
for  the  King's  profit  as  well  as  for  that  of  the  defendants. 

In  case  47,  the  plaintiff  was  grantee  of  the  wardship  of  A,  who  was  lord  of 
the  manor  of  B,  which  was  held  in  capite.  Defendant  took  possession  of  the 
manor,  in  contempt  of  the  King  and  disinherison  of  the  ward,  as  well  as  to  the 
damage  of  the  plaintiff. 

In  case  112,  the  plaintiffs  allege  they  have  been  unjustly  deprived  of  the 
money  paid  for  the  ransom  of  certain  prisoners,  of  which  the  King  was 
entitled  to  a  share. 

In  what  may  be  termed  the  equity  cases,  the  reason  given  for  the  Chan- 
cellor's interference  is  generally  that  the  plaintiff  has  no  remedy  at  common 
law.  The  stumbling-block  might  be  either  in  principle  or  in  procedure.  Most 
of  these  matters  will  be  more  conveniently  considered  in  the  next  sections, 
but  one  or  two  may  be  mentioned  here. 

In  case  4,  the  defendants  cannot  have  any  remedy  at  common  law  because 
the  tenements  from  which  thej'  have  been  ousted  are  within  a  franchise,  and 
the  lord  of  the  franchise  is  implicated  in  the  wrong-doing  of  the  defendants. 

1417-1422;  Cal.  ii.  viii.  The  plaintiffs,  the  Provost  and  commonalty  of  P, 
complain  of  interruption  in  holding  of  their  market.  They  cannot  proceed  at 
common  law  because  the  defendants  are  of  the  commonalty. — Select  Cases  in 
Chancery,  10  Selden  Society,  Introduction  pp.  xxi.  to  xxiv. 

Principles  on  which  the  Chancellor  Acted 

Tlic  juinciides  on  which  the  decisions  of  the  Chancellor  in  the  exercise  of 
the  extraordinary  jurisdiction  thus  committed  to  him  were  founded,  were,  it 
would  seem,  those  of  Honesty,  Equity,  and  Conscience.  The  latter,  as  a  prin- 
ciple of  decision,  was  then  unknown  to  the  common  law, — it  was  of  clerical 
introduction;  Equity  was  kno\^Ti  to  the  Roman  law,  and  was,  as  we  have 
seen,  long  before  this  acknowledged,  to  some  extent  at  least,  as  a  rule  for 
decision  in  the  common  law  courts ;  but  Equity  is  reserved  for  a  more  full 
discussion  in  a  subsequent  page.     ♦     »     » 

Thus  it  appears  that  a  jurisdiction  to  interfere,  in  some  cases  at  least,  with 
the  rules  and  maxims  of  the  law  on  the  grounds  of  equity  and  conscience,  as 
wel!  as  to  supply  its  defects  was  clearly  exercised.  We  have  next  to  endeavour 
to  find  out  what  'here  the  specific  principles  by  which  this  interference  with 
the  law  was  regulated;  in  other  words,  what  meaning  was  attached  to  the 
terms  Equity  and  Conscience,  which  were  the  guides  by  which  the  Chancellors 
were  to  be  directed. 

The  term  Conscience,  as  denoting  a  principle  of  judicial  decision,  appears 
to  have  been  of  clerical  invention;  it  seems  to  have  embraced  the  obligations 
which  resulted  from  a  person  being  placed  in  any  situation  as  regards  another 
that  gave  to  Ihe  one  a  riglit  to  expect,  on  the  part  of  the  other,  the  exercise  of 
good  fiiith  tf)WHr(iH  him;  and  nearly  resembled  the  bona  fides  of  the  Praetorian 
Code,  as  illustrated  bv  its  various  commentators. 


PRINCIPLES  ON  WHICH  THE  CHANCELLOR  ACTED     17 

The  Ecclesiastical  Courts,  as  we  have  seen,  originally  assumed  jurisdiction 
in  all  cases  of  breach  of  faith,  operating,  no  doubt,  by  means  of  their  spiritual 
authority  upon  the  conficicnce  of  the  party  complained  of.  When  those  courts 
were  prohibited  from  taking  cognizance  of  breach  of  faith  affecting  contracts 
between  laymen,  cases  of  conscience  could  only  be  the  subject  of  cognizance  in 
the  Council  or  the  Court  of  Chancery;  ultimately  under  Conscience  a  wide 
field  of  jurisdiction  was  introduced,  embracing  all  departures  from  fair  dealing 
and  honesty,  and  it  included  some  cases  which  might  perhaps  be  more  appro- 
priately ranged  under  the  head  of  Public  Policy. 

The  Roman  Law  furnished  a  guide  as  to  the  Equity  which  was  to  be  admin- 
istered by  the  Court  of  Chancery,  which  we  shall  see  was  largely  taken  ad- 
vantage of.  I  may  here  notice  one  instance,  which  Cicero  supplies,  of  the 
correction  by  general  principles  of  equity,  of  a  rule  of  law  itself  founded  on 
equity.  The  law  on  principles  of  equity  had  established  as  a  maxim  that  the 
seller  of  an  estate  should  make  compensation  for  all  the  incumbrances  that  he 
knew  of,  and  which  he  might  omit  to  communicate  at  the  time  of  the  contract. 
One  Gratidianus  had  sold  a  house  to  C.  Sergius  Grata,  which  the  latter  had 
shortly  before  purchased  of  the  same  Gratidianus.  Sergius  Grata  was  entitled 
to  a  right  of  way  or  some  other  servitus,  or  as  we  may  say  easement,  over 
this  property  which  Gratidianus  naturally  did  not  mention  at  the  time  of 
sale.  Grata  taking  advantage  of  this  omission,  insisted  that  he  was  entitled, 
according  to  the  settled  rule  of  law  to  compensation  for  the  easement,  and  he 
commenced  an  action  to  recover  it.  This  being  an  actio  honw  fidei,  an  equitable 
defence  was,  as  we  have  seen,  admissible.  Crassus  was  the  advocate  of  Grata, 
Anthony  of  Gratidianus;  the  remainder  is  best  told  in  Cicero's  own  words: 
*'  Jus  Crassus  urgebat — quod  vitii  venditor  non  dixisset  sciens  id  oportere 
praestari." — "  JEquitatem  Antonius,  quoniam  id  vitium  ignotum  Sergio  non 
fuisset,  qui  illas  redes  vendidisset,  nihil  fuisse  necesse  dici ;  nee  eum  esse  de- 
ceptum,  qui  id  quod  emerat  quo  jure  esset  teneret."  "  Quorsum  haec,"  adds 
Cicero,  "  ut  illud  intelligas  non  placuisse  majoribus  nostris  astutos."  So  "  Si 
verbis  et  literis,  et  ut  dici  solet  sumrno  jure  contenditur,  solent  ejusmodi  ini- 
quitati,  Boni  et  .¥^qui  nomen  dignitatem  que  opponere." 

Looking  to  the  cases  to  which  this  principle  was  applied,  which  will  presently 
be  noticed  in  detail,  the  delegated  authority  to  decide  according  to  equity,  may 
have  been  considered  to  have  embraced  all  those  cases  in  which  a  party,  without 
having  committed  any  act  which  would  be  considered  as  contrary  to  good  faith 
or  conscience,  might  yet  by  the  rigour  of  the  positive  provisions  of  the  law, — 
though  founded  as  regards  their  general  application  on  natural  justice, — or  by 
the  silence  of  the  law, — the  particular  case  not  having  been  provided  for  at  all, 
— have  an  advantage  which  it  was  contrary  to  the  principles  of  equity  that 
he  should  be  permitted  to  enforce  or  to  retain.  In  such  cases  the  general  prin- 
ciples of  equity  in  the  sense  of  natural  justice,  which  are  antecedent  to  all 
positive  law,  were  resorted  to.  Where  the  rigour  of  the  law  favoured  the 
position  of  the  party  who  had  committed  any  unconscientious  act,  that  would 
be  relieved  against,  also,  under  the  head  of  conscience. 

However,  if  any  distinction  was  originally  recognized  as  to  the  respective 
import  of  the  terms  Equity  and  Conscience,  they  soon  became  confounded,  and 
a  very  considerable  latitude  was  admitted  in  the  application  of  the  terms 
Equity  and  Conscience.  A  new  head  of  equity  under  the  name  of  Cases  of 
Extremity,  which  comprehended  the  modern  jurisdiction  under  the  title  of 
Accident,  was  afterwards  introduced. 


18    PEINCIPLES  ON  WHICH  THE  CHANCELLOR  ACTED 

Some  extravagances  which  originated  perhaps  in  too  high  an  estimate  on 
the  part  of  the  Chancellors  of  Henry  VIII.  and  Elizabeth,  of  their  individual 
endowments,  and  erroneous  views  as  to  the  nature  of  their  office,  occasioned 
in  part  by  the  language  of  flattery,  gave  occasion  to  the  great  Selden  to  re- 
mark, more  perliaps  in  jest  than  in  earnest,  that  equity  was  a  roguish  thing; 
it  was  according  to  the  conscience  of  him  that  was  Chancellor,  and  as  that  was 
larger  or  narrower  so  was  equity.  This  might  indeed  have  been  a  true  picture 
of  the  court  on  its  original  foundation,  had  not  the  equitable  doctrines  and 
provisions  of  the  Roman  L:^.w  been  taken  as  the  principles  on  which  its  de- 
cisions were  to  be  founded;  but  it  is  plain  that  the  jurisdiction  never  could 
have  been  established,  if  the  conscience  of  the  judge  had  been  his  only  guide. 
It  may  be  remarked,  however,  that  too  much  consideration  was  sometimes  given 
to  the  Conscience  of  the  Queen.  It  is  "  the  holy  conscience  of-  the  Queen,  for 
matter  of  equity,"  said  Sir  C.  Hatton.  "  that  is  in  some  sort  committed  to' the 
Chancellor;"  and  though  the  Queen  may  not  have  directly  interfered  in  regard 
to  the  decision  of  any  particular  case,  she  not  unfrequently  commanded  that 
cases  should  be  heard  in  the  Court  of  Chancery  which  did  not  come  within 
any  branch  of  its  jurisdiction  as  a  Court  of  Equity  and  Conscience. 

But  generally  during  this  reign,  as  well  as  before,  equity  and  conscience, 
as  rules  of  decision,  were  referred  to  principles  deduced  from  the  Roman  juris- 
prudence, the  sanction  of  which  was  occasionally  directly  adverted  to,  inde- 
pendently of  the  private  conscience  of  the  judge.  Nothing  is  recorded  as 
having  been  delivered  judicially  from  the  bench  which  can  warrant  the  supposi- 
tion that  the  private  opinion  or  conscience  of  the  judge,  or  what  is  perhaps 
equivalent,  his  whim  or  caprice,  independent  of  principle  and  precedent,  was 
a  legitimate  ground  of  decision. — Spcnce,  Equitable  Jurisdiction  of  The  Court 
of  Chancery,  vol.  I,  p.  339,  and  411  et  seq. 

Early  Influences  of  the  Roman  Law. — In  this  work  of  constructing  a  juris- 
prudence, the  early  common-law  judges,  as  well  as  the  Chancellor  at  a  later 
day,  drew  largely  from  their  own  knowledge  of  the  Roman  law.  The  evidence, 
both  internal  and  historical,  is  conclusive  that  the  common  law  of  England, 
in  the  earliest  formative  period,  was  much  indebted  to  that  Roman  juris- 
prudence which  enters  so  largely  into  the  judicial  systems  of  all  the  western 
nations  of  the  European  continent.  Besides  the  proof  furnished  by  the  law 
itself,  several  important  facts  connected  with  the  external  history  of  its  primi- 
tive stages  point  to  this  conclusion.  The  clergy,  who  possessed  all  the  learning 
of  the  times,  were  students  of  the  Roman  law.  The  earliest  justices  of  the 
common-law  courts,  as  well  as  the  chancellors,  were  generally  taken  from  the 
higher  orders  of  ecclesia.stics ;  and  on  all  occasions  where  it  was  necessary  for 
them  to  legislate  in  the  decision  of  particular  cases,  to  create  new  rules  for 
relations  hitherto  undetermined,  they  naturally  had  recourse  to  the  code  with 
which  they  were  familiar,  borrowed  many  of  its  doctrines,  and  adopted  them 
as  the  ground  of  their  judgments.  Nor  was  a  knowledge  of  the  Roman  law 
confined  to  the  courts;  its  study  became  a  part  of  what  would  now  be  called 
the  higher  education.  When  the  spirit  of  free  inquiry  was  suddenly  awakened 
at  the  commencement  of  the  twelfth  century,  one  of  its  most  remarkable  mani- 
festations was  shown  in  the  scientific  study  of  the  Roman  law  which  began 
at  the  University  of  Bologna  in  1120,  and  soon  extended  over  western  Europe. 
In  114.'{,  .\rclil)ishoj)  Theohiild,  who  had  himself  studied  at  Bologna,  brougiit  a 
distinguislied  civilian,  Vacarius,  into  England,  and  this  jurist  in  1149  estab- 
lislicd  a  school  of  the  I'oman  law  at  tiie  University  of  Oxford,  which  soon  rose 


PRINCIPLES  ON  WHICH  THE  CHANCELLOR  ACTED     19 

to  an  eminence  second  only  to  those  of  Paris  and  of  Bologna.  King  Stephen 
afterwards  prohibited  Vacarius  from  public  teaching,  but  this  act,  instead  of 
stopping  the  study  in  England,  produced  the  contrary  effect  of  stimulating  and 
promoting  it.  Bracton's  celebrated  work,  De  Legibus  et  Consuetudinibus  An- 
glia>,  written  between  A.  D.  125G  and  1250,  and  which  is  an  epitome  or  .syste- 
matic institute  of  the  common  law  as  it  then  existed,  exhibits  in  the  plainest 
manner  the  results  of  the  judicial  labor  and  scientific  study  which  had  pre- 
ceded it.  A  considerable  portion  of  its  doctrines,  and  even  of  the  terms  in 
which  its  rules  are  stated,  is  taken  directly  from  standard  treatises  of  the 
day  upon  the  Roman  jurisprudence.  In  the  language  of  a  recent  writer:  "  As 
Roman  legal  matters  obtained  reception,  although  the  written  sources  of  the 
Roman  law  were  not  at  all  received  as  having  a  legislative  authority,  Bracton 
properly  included  such  Roman  legal  matter  among  the  leges  et  consuetudines 
AnglifV." — Pomeroy,  Equity  Jiirisprndcnce,    (3d  ed.) ,  vol.  1,  §  14. 

The  question  how  far  precedent  was  regarded  as  binding  on  the  Court  and 
as  limiting  its  jurisdiction  under  the  early  Chancellors  and  during  the  present 
period  has  excited  much  discussion.  The  more  popular  view  is  that  of  Black- 
stone  and  Lord  Campbell,  which  Selden  and  Coke,  Lord  Ellesmere's  con- 
temporaries, held,  and  which  made  Whitelock,  when  offered  the  Great  Seal 
under  the  Commonwealth,  object  to  the  responsibilitj',  for,  he  said,  "  the 
judges  of  the  Common  Law  have  certain  fixed  rules  to  guide  them ;  a  Keeper 
of  the  Seal  has  nothing  but  his  own  conscience  to  direct  him,  and  that  is 
oftentimes  deceitful.  The  proceedings  in  Chancery  are  '  secundum  arbitrium 
boni  viri,'  and  this  arhitrium  differs  as  much  in  several  men  as  their  counte- 
nances differ."  Spence,  on  the  other  hand,  has  ably  argued  for  the  opposite 
conclusion.  If  the  popular  opinion  be  correct,  he  says,  "  it  is  a  little  extraor- 
dinary that  causes"  (under  the  Clerical  Chancellors)  "should  have  been 
brought  to  a  hearing  and  heard  with  so  much  of  ceremony  and  of  regard  to 
regularity  "  as  the  records  exhibit.  In  his  opinion  the  Clerical  Chancellors, 
and,  to  a  less  extent,  their  lay  successors,  introduced  the  doctrines  of  the 
Civil  Law.  and  were  chiefly  guided  by  adherence  to  its  rules,  and  he  shows  how 
much  similarity  there  is  between  many  of  its  doctrines  and  the  doctrines  of 
equity  as  established  by  the  end  of  the  present  period.  But  the  importance  of 
this  similarity  may,  I  suspect,  be  much  overrated.  Granting  that  the  process 
of  discovery  by  the  oath  of  the  Defendant,  which  the  Chancery  borrowed  from 
the  Canon  Law,  and  of  injunction  to  quiet  possession,  which  Wolsey  is  charged 
with  having  introduced,  bear  close  analogies  to  forms  of  procedure  allowed  at 
Rome,  it  is  not  clear  that  any  of  the  doctrines  of  early  equity  can  be  traced  to 
the  Civil  Law,  although,  when  the  construction  of  legacies  and  gifts  mortis 
causa,  at  a  later  date,  were  taken  over  by  Equity  from  the  Ecclesiastical 
Courts,  no  doubt  the  Civil  Law  rules  in  regard  to  them  were  taken  also.  The 
Civil  Law.  as  I  have  already  said,  was  referred  to  as  a  repertory  of  moral 
principles,  and,  as  such,  it  was  accepted,  not  only  in  our  Court  of  Chancery, 
but  throughout  the  Western  World.  The  Law  of  Nature  to  which  the  pub- 
licists of  a  later  age  constantly  referred  was  nothing  more  than  the  Civil  Law 
denuded  of  its  technicalities,  and  modified  occasionally  by  contrast  with  the 
positive  morality  of  the  Christian  system.  In  this  sense  the  Ecclesiastical 
Chancellors  perhaps  ..referred  to  the  Civil  Law,  and  guided  their  discretion 
by  its  rules,  but  in  this  alone.  The  protection  of  trusts  may  have  been  sug- 
gested by  the  double  ownerships  of  the  older  code,  but  such  ownerships,  as 
Already   shown,  were   known  apart  from   it,   and   the  wording  of  the   earlier 


20    PKINCIPLES  ON  WHICH  THE  CHANCELLOR  ACTED 

bill3  in  Chancery  would  suggest  that  it  was  due  to  the  simple  principle  of 
compelling  a  Trustee  to  give  up  what  he  had  only  received  on  an  express 
undertaking  to  do  so.  The  great  doctrine  of  Specific  Performance  of  obliga- 
tions both  arising  ex  contractu,  and  apart  from  agreement,  is  wholly  without 
warrant  from  the  Roman  Law.     *     *      » 

The  influence  of  Roman  Law  upon  equity  has  several  times  been  adverted  to 
in  this  essay,  and  a  fresh  perusal  of  these  leading  eases  has  confirmed  the 
opinion  I  have  already  expressed,  that  the  earlier  has  directly  contributed  very 
little  to  the  later  system.  In  cases  relating  to  the  descent  of  personality  on 
an  intestacy,  or  under  a  will,  the  Civil  Law  rules  were,  of  course,  more 
or  less  adhered  to,  for  they  had  been  originally  adopted  in  such  matters  by 
the  Ecclesiastical  Courts.  Thus  the  House  of  Lords  in  the  case  of  the  half- 
blood  next-of-kin  heard  civil  as  well  as  common  lawyers,  and  in  cases  like 
Asburner  v.  Macguire  (2  \V.  and  T.  246,  1786,  ademption  of  legacy)  and  Scott 
V.  Tyler  (2  W.  and  T.  120,  1787,  legacy  giving  subject  to  a  condition  in  re- 
straint of  marriage  )  there  was  much  discussion  of  Roman  Law.  The  sources 
from  which  the  passages  from  the  Institute  and  the  Digest  which  was  cited 
in  Equity  were  almost  invariably  taken, — the  text  books  of  Ecclesastical  law, 
Godolphin  and  Swinburne, — indicate  clearly  the  uses  to  which  they  were  ap- 
plied. References  to  the  Digest  and  the  later  Civilians  occasionally  occurred 
in  the  arguments  and  judgments  in  cases  of  a  different  character,  but  they  were 
rare,  and  were  used  merely  as  illustrations,  or  in  support  of  arguments  of  a 
general  nature,  as  a  modern  lawyer  might  employ  references  to  the  Code  of 
Napoleon.  The  definitions  of  fraud  and  negligence  propounded  and  discussed 
by  the  Roman  jurists,  for  example,  were  employed  in  this  way,  and  it  was 
no  doubt  for  the  sake  of  these  that,  at  a  time  when  the  authorities  of  equity 
were  certainly  to  be  found  solely  in  the  English  reports.  Lord  Westbury  ad- 
vised his  pupils  to  make  a  constant  study  of  the  Digest.  Certainly  the  general 
opinion  has  long  been  that  the  debt  of  equity  to  Roman  Law  was  much  greater 
than  that  here  suc;gested,  and  comparisons  between  the  two  systems  were 
common  in  the  text  books  of  the  last  century.  The  editor  of  the  Reports  of 
Lord  Nottingham's  time,  for  instance,  annotated  them  with  reference  to 
Roman  Law  rules,  for  the  assistance  of  practitioners.  It  was  the  fashion 
to  trace  prominent  doctrines  to  the  older  law:  thus  Lord  Eldon  in  Mackreth  v. 
Bymmons  (1  W.  and  T.  355  )  traces  the  vendor's  lien  for  unpaid  purchase 
money  to  the  rule  "quod  vendidi  non  aliter  fit  accipients  quam  si  aut  pretium 
nol)is  solutum  sit,  aut  satis  co  nomine  factum,  vel  ctiam  fidcn  habuerimus  enip- 
tore  sine  ulla  satisfactione,"  Diq,  IS.  1,  50.  11,  but  on  turning  to  the 
earliest  case  where  the  lien  was  allowed,  it  is  found  to  have  been  grounded 
"  on  natural  equity,  that  the  lands  should  stand  charged  Avith  so  much  of  the 
purchase  mf)ney  as  was  not  paid,  and  that  without  any  special  agreement  for 
the  purpose."  Chapman  v.  Tanner,  1  Vcrn.  267,  1684. — Kcrly,  TJistory  of 
Ef/uity,  p.  100,  and  180. 

Tlie  general  princij)lcs  on  wliicli  tlio  (^liancory  was  supposed  to  act  in  such 
matters  as  were  not  remediable  nf  conmion  law  are  variously  expressed  by  the 
terms  '  eonscicnce.'  '  gnod  faith.'  '  reason,'  and  so  on,  and  more  rarely  'equity.' 
One  or  more  nf  Ihcso  or  some  similar  expressions  occur  in  nearly  all  the 
early  Clmnccry  bills.  The  rarest  of  these,  curiously  enough,  is  the  one 
that  has  survived  and  given  i)~  riamc  to  all  cases  of  this  class,  equity.  The 
wnrd  <]noH  nf)t  ncciir  in  tbi«  vdlninc  It  will  be  found  in  the  writ  from  TTenry 
V  to  the  Chancellor  in    lllO    (Cal.  i.    16,  and  ante  p.  xiii),  where  the  Chan- 


WHAT  IS  A  CHANCERY  PKOCEEDING?  21 

cellor  is  directed  to  do  both  right  and  equity.  Also  in  7  Edw.  IV,  1467-8, 
where  the  Keeper  is  directed  to  act  according  to  equity  and  good  conscience 
(Cal.    i.    84). 

The  word  '  conscience  '  is  used  frequently.  In  case  123,  unfortunately  not 
dated,  the  Chancery  is  called  the  'Court  of  Conscience.'  Such  expressions  as 
'conscience  and  law'  (case  138),  'the  law  of  conscience'  (case  143),  'law 
and  conscience'  (cases  121,  136),  'law  and  right'  (case  8,  &e.),  'law,  right, 
and  good  conscience'  (case  121),  'right  and  reason'  (case  26,  &c.),  'reason 
and  good  faith  '  (case  72),  &c.  &c.,  are  common  enough. — Select  Cases  in  Chan- 
cery, 10  Selden  Society,  Introduction  p.  xxix. 

What  is  a  Chancery  Proceeding? 

Before  going  further  it  will  be  well  to  define  what  is  meant  by  the  terra 
'  Chancery  Proceeding."  Petitions  to  the  Chancellor  in  his  capacity  as  a  high 
officer  of  state  are  found  at  a  very  early  period  of  our  legal  history,  and  many 
such  are  found  among  the  '  Ancient  Petitions,'  as  they  are  called,  preserved  at 
the  Record  Office.  But  clearly  such  petitions,  although  addressed  to  the  Chan- 
cellor, are  not  in  any  sense  'proceedings.'  There  are  four  essentials  to  the 
Chancery  Proceeding:  (a)  a  petition  addressed  to  the  Chancellor  or  Keeper 
Oy  a  petitioner  or  plaintiff  complaining  of  (b)  an  alleged  wrong  done  by  some 
specified  person  or  persons,  and  asking  (c)  that  the  person  complained  of  may 
be  sent  for  to  answer  the  complaint,  and  (d)  that  a  remedy  may  be  provided, 
a.     The  Petition  or  Bill. 

The  actual  form  of  the  petition  or  bill  needs  little  comment.  There  is 
wonderfully  little  variation  in  these  from  the  earliest  known  down  to  their 
abolition  by  the  Judicature  Act  of  187.3.  They  are  almost  invariably  in  French, 
down  to  the  reign  of  Henry  V,  when  English  forms  became  customary.  One 
Latin  bill  occurs  in  this  volume,  No.  9.  As  a  general  rule  each  bill  is  ad- 
dressed at_the  top  to  the  Chancellor  or  Keeper,  mentioning  him  bj^  name,  or 
by  the  name  of  his  see  when  he  is  a  Bishop.  By  this  means  it  is  possible  to 
date  approximately  many  bills  which  it  would  otherwise  be  impossible  to  date. 
Still,  a  goodly  number  are  addressed  simply  to  the  Chancellor  without  giving 
any  name,  and  most  of  these  cannot  be  dated  (Nos.  123-134). 

The  bill,  as  I  have  said,  is  generally  addressed  to  the  Chancellor  or  the 
Keeper,  but  there  are  some  interesting  and  instructive  exceptions.  It  is 
occasionallv  addressed  to  the  king.  There  are  no  examples  in  this  volume,  but 
several  will  be  found  in  the  Calendar  already  referred  to.  Thus,  in  vol.  1,  p. 
xvi,  in  1419  the  king  is  asked  to  write  to  the  Chancellor  'to  do  clepe  the 
parties  afor  him  and  examine  hem  and  make  an  end  by  twene  hem  of  all  that 
hangeth  bitwene  hem  in  youre  courtys.'  The  king  accordingly  writes  to  the 
Chancellor  to  that  effect — '  ye  doo  calle  before  vow  bothe  parties  speciffied  in 
the  same  supplication,  and  thair  causes  herd,  that  ye  doo  unto  hem  both  righte 
and  equite.  and  in  especial  that  ye  see  that  the  porer  partye  suffre  no  wrong.' 

In  this  volume,  case  135  is  a  bill  addressed  to  the  Duke  of  Gloucester,  the 
Protector,  early  in  the  reign  of  Henry  VI,  asking  that  the  plaintiff  may  have 
of  the  Chancellor  of    England  a  writ  that  is  called  sub  poena. 

The  most  interesting  variations  from  the  usual  form  are  those  in  which  the 
Council  is  mentioned.  No.  107,  which  can  be  dated  about  1384,  is  addressed 
'  To  the  Chancellor  pf  our  most  redoubted  Lord  the  King,  and  to  his  most  wise 
Council.'  No.  19,  which  can  be  dated  shortly  after  1396,  is  addressed  to  the 
Chancellor,  '  and  to  the  other  most  wise  Lords  of  the  Council  of  our  most 
redoubted  Lord  the  King.'     We  shall  see  hereafter  that  the  Council   sat  as 


22  WHAT  IS  A  CHANCERY  PROCEEDING? 

judges  in  the  Court  of  Chancery  well  into  the  fifteenth  century;  it  is  perhaps 

a  matter  of  surprise,  therefore,  that  more  petitions  are  not  addressed  to  them. 

b.     The  alleged  ivrong. 

A  petition  to  the  Chancellor  must  allege  some  wrong  done  to  the  plaintiff 
if  it  is  to  be  considered  a  Chancery  Proceeding,  and  it  must  be  a  wrong  of 
such  a  nature  that  the  remedy  thereof  lies  outside  the  administrative  powers 
of  the  Chancellor.  For  it  is  obvious  that  many  complaints  could  be  remedied 
by  the  Chancellor  of  his  own  power  and  authority  as  a  high  official  of  state 
without  calling  for  anything  in  the  nature  of  legal  proceedings  or  setting  the 
machinery  of  the  law  in  motion.  At  the  same  time  it  must  be  borne  in  mind 
that  it  is  not  easy  by  any  means  to  draw  a  hard  and  fast  line  between  the 
administrative  and  the  judicial  functions  of  the  Chancellor  in  the  fourteenth 
and  early  lifteenth  centuries.  Perhaps  the  safest  plan  is  to  say  that  when  the 
Chancellor  was  asked  to  send  for  the  defendant  and  to  hear  what  he  had  to  say, 
then  the  function  was  judicial,  but  not  otherwise.  Such  a  rule,  however,  must 
not  be  taken  too  strictly.  For  sometimes  we  find  a  petition  asking  for  a 
general  remedy  without  mentioning  any  writ,  even  though  it  may  be  per- 
fectly clear  from  the  terms  of  the  bill  that  a  proper  investigation  could  not  be 
made,  and  '  the  full  complement  of  justice  '  could  not  be  given  without  the 
defendant's  answer.  Such  a  case  must  emphatically  be  considered  as  a  Chan- 
cery Proceeding,  and  nos.  105  and  109  are  therefore  properly  placed  in  this 
volume.  V\e  may  reasonably  suppose  that  such  cases  are  early  ones,  and  that 
the  precise  remedy  was  not  clearly  understood. 

c.      The   VTrit. 

The  third  essential  is  the  writ  by  which  the  defendant  is  brought  before 
the  Court.  This  is  in  by  far  the  majority  of  cases  the  personal  writ  of  sub 
poena.  The  same  end  might  be  secured  by  arrest,  by  venire  facias,  or  by  corpus 
cum  causa.  The  sub  poena  was  the  ordinary  writ;  two  early  examples  dated 
in  1388  and  1394  will  be  found  in  this  volume,  cases  7  and  11.  Its  history 
is  obscure.  John  Waltham,  who  is  credited  with  its  invention  (see  Rot. 
Pari.  iv.  84),  was  Master  of  the  Rolls  from  1381  to  1386,  and  a  Master  in 
Chancery  during  the  same  period.  It  is  not  known  if  he  had  previously  been 
a  Clerk  in  the  Chancery  (Foss.)  If  the  story  is  true,  its  inception  must  have 
been  before  his  appointment  to  that  office,  as  the  writ  was  certainly  known  be- 
fore 1381.  Palgrave  gives  a  writ  of  sub  poena  dated  in  1364,  and  that  issued 
upon  a  bill  addressed  to  the  King  and  Council.  {Rot.  Pat.  38  Edw.  Ill, 
pt.   1,   m.   15.) 

The  question  is  one  of  slight  importance,  for  there  was  another  and,  I 
think,  an  earlier  writ  for  compelling  the  defendant's  appearance.  This  is 
generally  known  as  the  quibusdam  certis  de  causis.  The  name  is  not  a  happy 
one,  for  the  sub  poena  and  the  premunire  also  begin  with  the  same  words. 
Indeed,  the  form  of  these  first  two  writs  is  almost  identical  save  for  the  pen- 
alty; the  f)ne  enjoins  attendance  under  the  penalty  of  a  certain  sum  of  money, 
the  other  '  sub  pericuio  quod  incumbit,'  '  sub  gravi  indignatione,'  or  some 
similar  expression.  Sec  cases  2,  8,  9.  14  and  35  for  examples.  Thus  the 
'  ingenious  author'  (as  Palgrave  calls  him)  of  the  sub  poena,  whoever  he  may 
have  been,  simply  substituted  a  definite  pecuniarj'  penalty  for  an  indefinite 
iTJrcat  of  something  terrible.  For  I  think  there  can  be  little  doubt  that  tKe 
indefinite  writ,  tlic  quil)usdam  certis  de  causis,  was  the  older  writ  of  the  twoT 
As  to  the  date  when  each  writ  first  made  its  appearance,  it  is  difficult  to  find 
any  positive  evidence. 


FUNDAMENTAL  THEORIES  AND  PRINCIPLES  23 

d.  The  remedy  asked  for. 
The  fourth  essential  of  a  Chancery  Proceeding  is  that  the  plaintiff  prays 
for  a  remedy  from  the  Chancellor.  This  is  frequently  in  very  general  terms, 
especially  in  early  cases.  Sometimes  the  plaintiff  evidently  did  not  know 
what  remedy  to  ask  for,  or  whether  he  had  any  at  all,  but  left  it  entirely  to 
the  Chancellor's  superior  wisdom  and  good  graces.  Thus  in  Case  58  the 
plaintiff  asks  for  '  such  a  writ  as  to  you  shall  seem  reasonable  in  this  case.' — 
Select  Cases  m  Chancery,  10  Selden  Society,  Introduction,  p.  xii. 

Fundamental  Theories  and  Principles  of  Equity. 

From  time  immemorial  it  was  one  of  the  prerogatives  of  the  king  to  ad- 
minister justice  to  his  subjects.  He  could  do  this  personally,  or  delegate  the 
power  to  others,  at  his  option.  As  his  prerogative  did  not  extend  to  legislation, 
he  was  bound  to  administer  justice  according  to  law,  and  not  according 
to  his  own  ideas  of  right, — still  less  according  to  his  own  fancy  or  caprice.  It 
seems  to  have  been  a  part  of  his  prerogative,  however,  to  adopt  such  a  system 
of  procedure  as  he  saw  fit,  at  least  in  the  absence  of  any  legislation  to  the 
contrary.  At  an  early  period  it  became  the  established  course  for  the  king  to 
delegate  his  judicial  power  in  civil  causes  to  judges  appointed  by  him  for  the 
purpose.  This  delegation,  however,  was  not  general,  but  was  made  specifically 
in  each  case,  i.  e.,  when  the  king  was  applied  to  for  the  redress  of  some 
grievance,  he  gave  the  complainant  a  writ,  requiring  the  party  complained  of 
to  appear  before  the  king's  judges,  and  authorizing  the  latter  to  take  cogni- 
zance of  the  case.  The  writ  briefly  stated  the  nature  of  the  complaint ;  and, 
if  the  case  turned  out  to  be  different  from  what  the  ^^Tit  stated,  the  judges 
would  have  no  authority  to  proceed,  and  the  plaintiff  failed.  Originally,  it 
would  seem,  the  judges  were  authorized  to  mould  their  procedure  into  such 
form  as  they  saw  fit ;  but  this  power  was  in  a  great  measure  lost  in  process  of 
time,  the  fundamental  principles  of  their  procedure  becoming  so  fixed  by  long 
use  thp.t  they  were  binding  upon  the  judges  as  a  part  of  the  law  of  the  land. 

Sometimes  it  would  happen  that  a  case  would  be  presented  to  which  no 
existing  writ  was  adapted,  and  yet  the  case  would  be  one  which  demanded  a 
remedy  of  some  kind.  In  that  event,  the  king  must  either  take  direct  cogni- 
zance of  the  case,  or  he  must  have  a  new  writ  framed  expressly  for  it.  For 
reasons  which  it  is  not  necessary  here  to  inquire  into,  the  latter -course  became 
impracticable  at  an  early  day,  and  the  former  alone  remained.  So  also  cases 
arose  in  which  it  was  useless  to  give  the  complainant  a  writ,  since  the  king's 
judges,  from  the  nature  of  their  procedure,  could  either  afford  no  remedy-,  or 
only  an  inadequate  one.  Of  such  cases,  therefore,  the  king  alone  could  take 
effective  cognizance. 

It  was  in  this  v.'ay  that  the  jurisdiction  in  equity  arose.  It  consisted  of 
that  portion  of  the  king's  judicial  prerogative'  in  civil  causes  which  he  had 
retained  in  his  own  hands,  having  never  delegated  it  to  his  judges  by  writ. 
It  is  true,  the  king  did  not  take  cognizance  of  equity  cases  personally,  any 
jnore  than  he  did  of  common-law  cases,  but  in  legal  contemplation  he  did:  and 
the  chancellor  differed  from  the  common-law  judges  in  this  particular  among 
others,  namely,  that  he  exercised  the  king's  prerogative  directly,  his  judicial 
acts  deriving  their  efficacy  from  the  fact  that,  in  legal  effect,  they  were  the  acts 
of  the  king,  the  chancellor  being  little  more  than  the  king's  secretary.  This 
is  the  explanation  of  several  peculiarities  of  procedure  in  chancery.  Thus, 
all  writs  which  are  issued  in  the  prosecution  or  defence  of  a  suit  in  chan- 


2i         FUNDAMENTAL  THEORIES  AND  PRINCIPLES 

eery  must  be  sealed  with  the  king^'s  great  seal,  and  are  tested  in  the  king's 
name,  no  matter  how  slight  or  unimportant  the  occasion  upon  which  they  are 
to  be  used :  and  notwithstanding  the  serious  expense,  delays,  and  inconvenience 
which  are  caused  by  what  seems  upon  its  face  to  be  a  useless  form.  The  com- 
mon-law courts  have  seals  of  their  own,  and  when  they  have  once  received 
author  it  V  from  the  king,  by  writ  under  the  great  seal,  to  take  cognizance  of  an 
action,  all  further  writs  which  are  necessary  in  its  prosecution  or  defence  are 
issued  under  their  own  seal,  and  are  tested  by  their  chief  justice.  But  the 
chancellor  has  never  had  a  seal  of  his  own,  and  he  cannot  even  compel  a  wit- 
ness to  appear  and  testify,  except  by  a  writ  under  the  great  seal.  The  chan- 
cellor also  has  to  enforce  his  authority  by  writ  in  cases  where,  upon  ordinary 
principles,  a  writ  is  neither  necessary  nor  proper.  Thus,  all  the  decisions  of 
the  chancellor,  upon  questions  brought  before  him,  are  embodied  in  orders  or 
decrees,  which  are  formally  drawn  up  in  writing,  and  which,  as  will  be  seen 
presently,  always  direct  the  party  against  whom  they  are  made  to  do  or  not 
to  do  something.  The  normal  mode  of  enforcing  such  orders  and  decrees  would 
be  to  serve  them  upon  the  parties  respectively  by  whom  they  are  to  be  per- 
formed (generally  by  showing  the  original  and  delivering  a  copy),  and,  if  they 
refuse  obedience,  to  punish  them  for  contempt  of  the  authority  of  the  court. 
But  in  chancery  the  mode  is,  to  issue  a  writ  under  the  great  seal,  incorpo- 
rating in  it  the  tenor  or  the  substance  of  the  order  or  decree,  and  commanding 
the  party  to  perform  it;  and,  if  he  refuses  obedience  to  the  writ,  he  is  guilty 
of  a  contempt,  not  to  the  chancellor,  but  to  the  king;  and  hence,  when  the 
chancellor  proceeds  to  punish  him  for  his  contempt,  he  adopts  a  mode  of  pro- 
ceeding unknown  to  any  mere  court  of  justice,  the  delinquent  being  treated 
as  a  rebel  and  contemner  of  the  king's  sovereignty.  Finally  common-law 
judges  can  exercise  their  authority  only  when  holding  a  court,  the  delegation 
of  authority  being  to  the  court,  and  not  to  the  judges  individually;  and  this 
has  the  effect  of  limiting  the  action  of  common-law  courts  to  term  time,  they 
having  no  authority  to  sit  in  vacation.  But  as  the  chancellor  represents  the 
king,  his  autliority  is  pers-onal,  and  may  be  exercised  at  any  place  within  the 
kingdom,  and  equally  in  term  time  or  vacation.  It  is  commonly  said  that  the 
court  of  chancery  is  always  open;  but  in  truth  the  chancellor  does  not  hold  a 
court  in  the  strict  sense  of  the  term,  and  hence  his  sessions  are  not  formally 
opened  and  adjourned,  like  those  of  common-law  courts. 

Bearing  in  mind  that  the  king,  as  well  as  the  common-law  judges,  was  bound 
to  administer  justice  according  to  law;  that  he  differed  from  the  latter  in 
being  free  to  adopt  such  a  system  of  procedure  as  he  thought  fit;  and  that  the 
necessity  for  resorting  to  the  king's  prerogative  jurisdiction  arose  from  the 
inability  of  the  common-law  courts  to  afford  an  adequate  remedy  for  all  exist- 
ing rights, — it  follows  that  equity  originally  differed  from  the  common  law  in 
little  else  than  in  having  a  different  system  of  procedure,  and  thus  affording 
different  remedies,  and,  in  particular,  it  follows  that  the  court  of  chancery 
did  not  administer  a  different  system  of  law  from  the  common-law  courts,  as 
the  ecclesiastical  and  admiralty  courts  did.  Wliat,  then,  were  the  defects  of 
the  common-law  procedure  which  gave  rise  to  equity,  and  how  were  these 
defects  remedied  by  the  system  of  procedure  adopted  in  chancery? 

The  common-law  j)rncedure  is  founded  upon  the  theory  that  the  parties  to 
an  action  owe  no  obedience  tf)  the  court.  Accordingly,  a  common-law  court 
never  redresses  a  wrong  done  to  a  j)laintiff  by  laying  a  command  upon  a  de- 
fendant.    Thu3,  if  a  defendant  in  an  action  detains  property  belonging  to  the 


FUNDAMENTAL  THEORIES  AND  PRINCIPLES.  25 

plaintiff,  the  court  gives  judjJTiient  that  the  phiintiff  recover  it,  and  thereupon 
issues  a  writ  of  execution  directed  to  the  sheriff,  and  commanding  him  to  put 
the  plaintiff  in  possession  of  the  property,  if  real;  if  personal,  to  take  it  and 
deliver  it  to  the  plaintiff.  But  in  the  latter  case,  if  the  sheriff  cannot  find  the 
property,  a  court  of  common  law  can  do  nothing  for  the  plaintiff  except  give 
him  damages.  The  defendant  may  know  where  the  property  is,  having  pur- 
posely removed  it  or  concealed  it  from  the  sheriff;  still  he  cannot  be  ordered  to 
deliver  it  to  the  plaintiff.  So,  if  a  defendant  has  refused  to  perform  a  con- 
tract, a  court  of  common  law  can  only  give  the  plaintiff  damages,  no  matter 
how  important  to  the  latter  actual  performance  may  be.  So  a  defendant  may 
threaten  to  do  the  plaintiff  an  irreparable  injury,  or  he  may  be  actually  doing 
it,  and  repeating  it  from  day  to  day,  yet  a  court  of  common  law  cannot  prevent 
it.  It  can  only  give  the  plaintiff  damages  after  the  injury  is  committed.  So 
the  power  of  a  common-law  court  to  enforce  a  judgment  for  the  recovery  of 
money  begins  and  ends  with  issuing  a  writ  of  execution  to  the  sheriff,  com- 
manding him  to  seize  the  property  of  the  judgment-debtor  and  apply  it  to  the 
satisfaction  of  the  judgment.  If  the  judgment-debtor  has  no  property  that  is 
capable  of  seizure,  or  none  that  the  sheriff  can  find,  the  judgment  must  remain 
unsatisfied,  for  anything  the  court  rendering  it  can  do,  though  the  judgment- 
debtor  have  millions  in  choses  en  action  or  in  shares  in  incorporated  com- 
panies. So  if  A  has  received  property  to  hold  in  trust  for  B,  the  latter  can 
have  no  remedy  at  law;  for  A  is  confessedly  the  owner  of  the  property,  and  a 
court  of  law  cannot  compel  him  to  perform  the  trust.  Nor  can  a  court  of  law 
make  a  division  or  partition  of  property  among  several  co-owners,  though  it 
formerly  attempted  to  do  so  in  case  of  real  estate.  To  do  this  successfully  in 
any  but  the  simplest  cases,  it  is  necessary  that  the  court  should  assume  con- 
trol over  the  parties.  In  one  instance  courts  of  law  seem  formerly  to  have 
departed  from  their  principles,  namely,  in  entertaining  the  action  of  account, 
i.  e.,  an  action  to  compel  the  rendering  of  an  account;  but  their  methods  were 
so  ill  adapted  to  such  a  purpose  that  this  action  long  since  became  obsolete. 

The  power  of  common-law  courts  is  subject  to  another  important  limitation, 
intimately  connected  with  the  foregoing,  if  it  does  not  indeed  result  directly 
from  it.  They  cannot  deal  with  a  controversy  to  which  there  are  more  than 
two  parties  or  two  sets  of  parties.  The  contract  of  suretyship  will  serve  as  an 
illustration  of  this.  To  such  a  contract,  in  its  simplest  form,  there  are  three 
parties,  viz.,  the  creditor,  the  principal  debtor,  and  the  surety;  and  no  two  of 
them  are  united  either  in  interest  or  obligation.  No  more  than  two  of  them, 
therefore,  can  be  parties  to  any  action  at  law.  If  there  are  several  sureties, 
the  case  is  much  worse:  for  though  they  may  all  be  sued  at  law  by  the  creditor, 
if  their  obligations  be  joint,  yet,  in  any  controversy  with  the  debtor  in  Avhich 
they  are  all  interested,  the  law  can  afford  no  remedy;  for  only  one  of  tliem  can 
be  a  party  to  an  action  by  or  against  the  debtor.  In  other  words,  a  court  of 
law  can  only  entertain  a  controversy  between  the  debtor  and  one  surety.  So, 
if  a  controversy  arises  between  the  several  sureties,  a  court  of  law  is  equally 
powerless,  as  it  can  only  entertain  a  controversy  between  two  of  them. 

It  may  be  added  that  the  jurisdiction  of  a  court  of  law  is  contentious  only, 
that  is,  it  is  strictly  limited  to  deciding  controversies. 

These  defects  in  the  common-law  procedure  could  be  effectually  remedied  in 
only  one  way,  namely,  by  adopting  a  procedure  founded  upon  the  principle  of 
compelling  litigants  to  do  whatever  the  chancellor  decided  that  by  law  they 
ought  to  do.     Such  a  system  was  furnished  by  the  ecclesiastical  courts.     It 


26  FUNDAMENTAL  THEOKIES  AND  PRINCIPLES. 

was  not  only  their  constant  practice  to  adjudicate  upon  the  duties  of  litigants, 
and  to  compel  performance  thereof  specifically;  but,  in  consequence  of  their 
having  no  jurisdiction  over  property,  it  was  their  only  mode  of  administering 
justice.  It  is  true  that  they  were  equally  without  jurisdiction  over  the  bodies 
of  litigants,  and  had  to  confine  themselves  to  punishments  of  a  spiritual  na- 
ture; but,  when  they  had  exhausted  those  without  effect,  they  were  entitled  to 
apply  to  the  king  for  a  writ  of  capias,  upon  which  the  delinquent  was  arrested 
and  imprisoned  until  he  submitted.  In  this  mode,  therefore,  their  whole 
judicial  power  was  exercised.  It  mattered  not  whether  a  party  was  to  be  re- 
quired to  take  some  necessary  step  in  a  suit,  or  to  pay  a  sum  of  money  found 
to  be  due  to  his  adversary,  or  to  pay  costs,  or  to  perform  some  more  specific 
duty  to  his  adversary,  or  to  refrain  from  committing  some  wrong  against  him: 
in  either  case  he  was  first  ordered  by  the  court  to  do  or  refrain  from  doing  the 
thing  in  question;  if  he  refused  obedience  he  was  pronounced  contumacious, 
and  excommunicated;  and  lastly  his  excommunication  was  signified  to  the 
king,  and  thereupon  a  writ  de  excommunicato  capiendo  was  issued,  upon  which 
he  was  arrested  by  the  sheriff  and  imprisoned  in  the  county  jail. 

This  system,  was  adopted  literally  by  the  chancellor,  mutatis  mutandis,  in 
the  exercise  of  the  prerogative  jurisdiction ;  and  it  has  continued  in  use  with- 
out change  to  this  day.  Indeed,  as  a  rule,  the  chancellor,  like  the  ecclesiastical 
courts,  had  no  jurisdiction  in  rem,  and  hence  could  only  enforce  his  orders  and 
decrees  by  process  in  personam;  though  whether  this  was  a  cause  or  a  conse- 
quence of  his  adopting  the  ecclesiastical  procedure  may  be  doubtful.  To  some 
extent,  however,  the  chancellor  has  asserted  and  maintained  the  right  to  pro- 
ceed in  rem.  Thus,  when  all  process  against  the  person  has  been  exhausted 
without  effect,  he  will  issue  a  writ  of  sequestration  against  the  property  of  the 
delinquent.  So  when  a  defendant  has  been  decreed  to  deliver  possession  of  land 
to  the  plaintiff,  as  a  last  resort  a  writ  of  assistance  will  be  issued  to  the  sheriff 
to  put  the  plaintiff  in  possession.  But,  with  these  exceptions,  chancery  exer- 
cises all  its  powers  by  process  of  contempt  against  the  person. 

[After  all,  these  are  scarcely  exceptions  to  the  rule  that  the  chancellor  has  no 
jurisdiction  in  rem.  When  he  issues  and  enforces  a  writ  of  sequestration,  or  a 
writ  of  assistance,  he  merely  exerts  physical  power  over  the  possession  of  prop- 
ertj',  and  this  he  can  do,  though  he  have  no  jurisdiction  whatever  in  rem.  A 
court  which  possesses  that  jurisdiction  can  by  its  judgment  or  decree  take  the 
title  to  property  out  of  one  person  and  put  it  in  another.  Thus,  courts  of 
admiralty  are  in  the  constant  habit  of  ordering  the  sale  of  property  against 
which  proceedings  in  rem  are  taken,  and  when  property  is  thus  sold,  all  exist- 
ing titles  to  it  are  extinguished,  and  the  entire  ownership  of  it  becomes  vested 
in  the  purcliaser.  So  when  the  property  of  a  judgment-debtor  is  seized  and  sold 
to  satisfy  tlie  judgment,  the  title  of  the  judgment-debtor  is  as  effectively  trans- 
ferred to  tiie  purcliaser  as  if  the  sale  had  been  made  by  tlio  judgment-debtor 
himself.  So  when  conunon-law  courts  were  in  the  habit  of  entertaining  suits 
for  the  partition  of  land,  the  partition  was  made  by  the  court  itself  without 
any  act  of  the  owners  of  the  property  whatever.  The  court  first  rendered 
judgment  that  partition  be  made  (quod  partitio  fuit)  ;  whereupon  a  writ  was 
issued  to  the  sheriff,  dirffting  him  to  make  a  partition  of  the  land  pursuant 
to  th(!  judgment,  inul  Kpiit  the  same  to  tlie  court.  When  this  had  been  done, 
the  court  rendered  aiiotlicr  and  final  judgment  that  the  partition  so  made 
remain  firm  sind  stable  fdrever  {firma  et  stabilis  in  per])e(uum  tencatur)  ;  and 
by  force  of  this  latter  judgment  each  party  accjuired  the  exclusive  title  to  the 


FUNDAMENTAL  THEORIES  AND  PRINCIPLES.  27 

share  allotted  to  himself,  and  ceased  to  have  any  title  to  the  shares  allotted  to 
the  others.  This  power  of  creating  and  extinguishing  titles  the  chancellor 
never  had  nor  claimed  to  have,  except  when  it  was  given  him  by  statute.  It 
is  true  thiit  he  frequently  directed  the  sale  of  property,  but  it  was  by  his  con- 
trol over  the  person  of  the  owner  that  he  made  the  sale  effective,  i.  c,  when  the 
sale  had  been  made  he  compelled  the  owner  to  execute  a  deed  pursuant  to  the 
sale;  and  hence,  when  the  owner  was  out  of  the  jurisdiction,  or  labored  under 
any  incapacity,  e.  g.,  that  of  infancy,  the  chancellor  was  powerless.  He  could 
not  even  make  the  appointment  of  a  new  trustee  effective,  e.xcept  by  compelling 
the  old  trustee  or  his  heir,  or  whoever  held  the  legal  title,  to  convey  to  the  new 
trustee.  When  it  became  the  practice  to  resort  to  chancery  for  the  partition  of 
land,  what  the  chancellor  really  did  was,  first,  to  inquire  and  ascertain  how  the 
property  should  be  divided,  and  then  to  compel  the  parties  to  divide  ac- 
cordingly by  the  execution  of  mutual  conveyances.  So  when  the  chancellor 
undertook  the  settlement  of  a  disputed  boundary,  he  first  ascertained  what 
the  true  boundary  line  was,  and  then  compelled  the  parties  by  mutual  convey- 
ances to  establish  that  as  the  boundary  line.  When  the  chancellor  placed 
property  in  the  hands  of  a  receiver,  the  latter  acquired  no  title  to  the  prop- 
erty, but  possession  merely.  If  he  had  occasion  to  assert  a  title  to  the  property 
in  a  court  of  law,  he  had  to  do  it  in  the  name  of  the  owner;  and  if  the  owner 
brought  an  action  against  him  to  recover  the  property,  he  had  no  defence  to 
the  action,  and  his  only  security  was  in  the  power  of  the  chancellor  to  punish 
for  contempt  any  one  who  interfered  with  the  possession  of  his  receiver.  It  is 
often  said  to  have  been  one  of  the  functions  of  the  Chancellor  to  set  aside,  for 
fraud  or  other  sufficient  cause,  judgments,  awards,  accounts  stated,  convey- 
ances, and  contracts;  but  this  is  an  incorrect  use  of  language.  If  a  judgment 
had  been  obtained  by  fraud,  he  would  enjoin  the  judgment-creditor  from  en- 
forcing it;  if  an  award  or  an  account  stated  was  infected  with  fraud,  he  would 
not  permit  it  to  be  used  against  the  defrauded  party,  either  as  a  cause  of 
action  or  as  a  defence  to  the  original  cause  of  action ;  if  a  conveyance  of  prop- 
erty was  obtained  by  fraud,  he  would  compel  a  reconveyance  of  it ;  if  a  written 
instrument  purporting  to  constitute  a  contract  was  infected  with  fraud,  he 
would,  in  a  proper  case,  require  it  to  be  delivered  up  and  cancelled;  but  he 
never  did  nor  could  set  anything  aside  by  liis  decree.  Indeed,  it  may  be  stated 
broadly  that  a  decree  in  chancery  has  not  in  itself  ( i.  c,  independently  of  what 
may  be  done  under  it)  any  legal  operation  whatever.  If  a  debt,  whether  by 
simple  contract  or  by  specialty,  be  sued  for  in  a  court  of  law,  and  judgment 
recovered,  the  original  debt  is  merged  in  the  judgment,  and  extinguished  by 
it,  and  the  judgment  creates  a  new  debt  of  a  higher  nature,  and  of  which  the 
judgment  itself  is  conclusive  evidence.  But  if  the  same  debt  be  sued  for  in  the 
court  of  chancery  (as  it  frequently  may  be)  and  a  decree  obtained  for  its  pay- 
ment, not  one  of  the  effects  before  stated  is  produced  by  the  decree.  Un- 
doubtedly it  has  often  been  said  by  chancellors  that  their  decrees  are  equal  to 
judgments  at  law,  but  that  only  means  that  they  will,  to  the  extent  of  their 
power,  secure  for  their  decrees  the  same  advantages  that  judgments  have  by 
law :  it  does  not  mean  that  a  decree  is  by  law  equal  to  a  judgment.  Again,  if 
a  claim  be  made  the  subject  of  an  action  at  law,  and  judgment  be  rendered  for 
the  defendent  upon  the  merits,  the  judgment  is  conclusive  evidence  that  the 
claim  was  not  well  founded,  and  it  will  therefore  furnish  a  perfect  defence  to 
any  future  action  upon  the  same  claim;  but  a  decree  in  equity  against  the 
validity  of  a  claim  is  never  a  defence  to  an  action  at  law  upon  the  same  claim. 


28  FUNDAMENTAL  THEORIES  AND  PRINCIPLES 

Here  again,  however,  the  chancellor  will  make  his  decrees  equal  to  judgments 
so  far  as  it  is  in  his  power  to  do  so;  and  therefore  a  decree  in  chancery  against 
a  claim  upon  its  merits  will  always  be  a  defence  to  any  future  suit  in  chancery 
upon  the  same  claim,  not  as  destroying  the  claim  or  as  proving  conclusively  its 
invalidity,  but  as  furnishing  a  sufficient  reason  why  chancery  should  not  again 
take  cognizance  of  it.  Such  a  decree  will  also  be  (what  is  sometimes  called)  an 
equitable  defence  to  any  action  at  law  upon  the  same  claim,  i.  e.,  the  chan- 
cellor will  enjoin  the  prosecution  of  any  such  action,  upon  the  ground  that  the 
plaintiff  having  elected  to  make  his  claim  the  subject  of  a  suit  in  equity,  and 
that  suit  having  been  defended  successfully  upon  the  merits,  it  is  not  right 
that  the  defendant  should  be  vexed  again  by  the  same  claim.  Accordingly, 
when  A  and  B  demand  the  same  thing  of  C,  and  for  that  reason  C,  the  demand 
being  a  legal  one,  files  a  bill  of  interpleader  against  A  and  B,  and  the  chan- 
cellor decides  that  the  thing  demanded  belongs  to  A,  and  awards  it  to  him,  he 
also  directs  a  perpetual  injunction  to  issue  against  B  to  restrain  him  from 
suing  C  at  law  for  the  same  thing,  and  that  is  C's  only  protection. 

Upon  the  whole,  therefore,  the  weakness  of  the  chancellor's  jurisdiction  is  as 
conspicuous  as  its  strength ;  its  strength  being  that  it  can  always  command  the 
obedience  of  suitors ;  its  weakness  being  that  it  has  substantially  no  resource 
beyond  commanding  such  obedience.  It  should  be  observed,  however,  that, 
while  its  element  of  strength  is  necessary  to  the  existence  of  the  jurisdiction, 
its  element  of  weakness  is  not.  The  chancellor  might  in  the  beginning,  like  the 
court  of  admiralty,  have  been  clothed  willi  the  same  jurisdiction  in  rem  as  in 
personam;  but  if  he  had  been,  equity  would  now  be  a  very  different  thing  from 
what  it  is,  and  its  machinery  would  be  very  different  from  what  it  is.  If  the 
system  were  to  be  constructed  anew,  probably  its  element  of  weakness  would 
be  eliminated  from  it,  and  if  it  could  be  reconstructed  in  an  enlightened  manner 
(a  thing  which  is  not  at  all  likely  to  happen),  it  would  probably  be  improved. 
However  that  may  be,  any  one  who  wishes  to  understand  the  English  system 
of  equity  as  it  is,  and  as  it  has  been  from  the  beginning,  must  study  its  weak- 
ness as  well  as  its  strength. — Note  to  2d  edition.] 

By  the  adoption  of  this  system  of  procedure,  the  chancellor  was  not  only 
enabled  to  enforce  specific  performance  in  the  numerous  cases  where  that  was 
obviously  either  the  sole  remedy,  or  the  only  adequate  one,  but  to  give  relief 
in  many  other  cases  in  which  the  common-law  courts  were  powerless.  Thus 
the  common  law  can  only  give  the  plaintiff,  as  a  rule,  what  he  was  absolutely 
entitled  to  when  he  brought  his  action.  If  anything  then  remained  to  be  done 
by  him  to  perfect  his  right,  or  if  more  time  must  elapse,  or  some  uncertain 
event  must  happen,  before  his  right  will  accrue,  his  action  must  wholly  fail; 
and  he  cannot  even  obtain  a  decision  of  the  question  in  controversy.  But  as 
the  chancellor  in  any  event  gives  relief  by  directing  and  requiring  the  de- 
fendant to  do  something,  there  is  no  technical  difficulty  in  the  way  of  his 
directing  the  thing  in  question  to  be  done  at  some  fixed  future  time,  or  upon 
'lie  liapjicning  of  some  event,  or  ujxui  the  |)orf(innaiice  of  some  condition  on 
tlie  |)art  of  tlie  plaintiff.  Sf)  lie  cau  iiiakc  it  a  condition  of  giving  relief  that 
the  plaintiff  shall  submit  to  do  on  his  p;nt  wliatever  shall  be  required  of  him, 
and  the  plaintiff  having  so  s\ihmitte(l,  the  decree  will  direct  performance  on  his 
part  as  well  as  on  the  part  of  the  defendant.  So,  too,  it  is  immaterial  to  the 
chancellor,  so  far  as  regards  his  ability  to  deal  with  a  controversy,  how  many 
different  interests  it  affects,  or  how  many  ditTerent  parties  or  sets  of  parties 
luivf  to  lie  lir<JM|.'ht  before  liiiii;   and  iiHIiougli  every  party  must  in  form  be  a 


FUNDAMENTAL  THEOKIES  AND  PRINCIPLES  29 

plaintiff  or  defendant,  it  is  not  necessary  that  any  two  defendants  be  united 
in  interest;  and  if  some  of  the  defendants  have  the  same  interest  as  the 
plaintilF,  it  constitutes  no  objection;  and  frequently  it  is  immaterial,  in  a 
legal  sense,  which  one  of  several  parties  is  plaintiff  in  the  suit;  for  in  any 
■event  the  chancellor  has  only  to  direct  what  shall  be  done,  if  anything,  by  each 
person  before  him,  whether  plaintiff  or  defendant,  and  upon  what  terms  and 
conditions,  if  any;  and  if  some  of  the  defendants  require  relief,  either  against 
the  plaintiff  or  against  co-defendants,  which  cannot  be  given  to  them  as 
defendants,  the  chancellor  can  have  them  made  plaintiffs  by  directing  them  to 
file  a  crossbill.  Nor  is  the  power  of  the  chancellor  limited  to  deciding  contro- 
versies; for  if  a  trustee,  or  any  person  occupying  a  fiduciary  position,  refuses 
to  perform  his  duties,  he  may  be  compelled  to  do  so  by  bill  in  equity,  and  the 
necessity  for  such  a  bill  may  (and  most  frequently  does)  arise  not  from  any 
misconduct  in  the  trustee,  but  from  his  being  in  doubt  as  to  what  his  duty 
requires  of  him,  and  from  his  needing  the  assistance  and  protection  of  the 
court;  in  which  case  he  may  file  the  bill  himself  instead  of  waiting  to  have  it 
filed  against  him.  And  when  such  a  bill  is  filed,  either  by  or  against  the 
trustee,  the  plaintiff  is  entitled  thereafter  to  have  the  entire  trust  administered 
under  the  direction  of  the  court.  Tn  this  way,  a  great  amount  of  administra- 
tive business  is  disposed  of  by  the  chancellor;  in  England,  indeed,  it  is  in  this 
way  that  the  estates  of  deceased  persons  are  settled  and  wound  up,  executors 
and  administrators  being  quasi  trustees.  Again,  it  often  happens  that  the 
court  can  do  a  thing  itself  more  easily  and  effectively  than  it  can  compel  it  to 
be  done  by  the  party  concerned;  and  when  that  is  so.  there  is  no  objection  in 
principle  to  the  court's  assuming  the  duty.  In  this  way,  the  chancellor  exer- 
cises an  important  administrative  jurisdiction  through  the  instrumentality  of 
receivers.  Thus,  whenever  it  becomes  necessary  or  proper  for  the  chancellor  to 
assume  temporary  control  over  the  possession,  care,  and  management  of  prop- 
erty, he  may  do  so  by  placing  it  in  the  hands  of  a  receiver,  instead  of  assuming 
control  over  the  party  in  possession. 

Of  course,  however,  it  must  not  be  supposed  that  equity  in  modern  times  is 
simply  a  different  system  of  remedies  from  those  administered  in  courts  of 
law ;  for  there  are  many  extensive  doctrines  in  equity,  and  some  whole  branches 
of  law,  which  are  unknown  to  the  common-law  courts.  Indeed,  it  may  be  said 
without  impropriety  that  equity  is  a  great  legal  system,  which  has  grown  up 
by  the  side  of  the  common  law,  and  which,  while  consistent  with  the  latter,  is 
in  great  measure  independent  of  it.  But  what  should  be  clearly  understood  is, 
that  the  whole  of  this  gi-owth  has  its  root  in  the  system  of  remedies  adopted. 
It  has  often  been  said  that  it  is  the  office  of  chancery  to  mitigate  the  rigor  of 
the  common  law,  to  supply  its  deficiencies,  to  relieve  against  its  technical  rules, 
and  to  decide  controversies  according  to  equity  and  good  conscience:  but  it 
is  because  of  its  system  of  remedies  that  it  is  enabled  to  do  this.  Thus,  the 
whole  system  of  trusts  has  grown  up  in  equity,  while  it  is  unkno^vn  at  common 
law,  because  the  chancellor  is  able  to  compel  the  performance  of  trusts,  and  a 
court  of  common  law  is  not.  So  when  the  estate  of  a  mortgagee  has  become 
absolute  by  the  terms  of  the  mortgage,  it  is  idle  for  a  court  of  law  to  inquire 
whether  he  is  bound  in  justice  to  reconvey  to  the  mortgagor  upon  receiving  his 
debt  and  interest ;  but  such  an  inqiiiry  is  very  material  in  a  court  of  equity, 
for,  if  the  conclusion  reached  is  that  he  is  so  bound,  the  court  will  compel  him 
to  do  it.  This  is  the  origin  of  the  equitable  doctrine  that,  as  a  mortgage  is 
designed  as  a  security  merely,  the  mortgagee  is  entitled  to  no  more  than  his 


30  FUNDAMENTAL  THEORIES  AND  PRINCIPLES 

debt  and  interest,  although  the  debt  was  not  paid  at  the  time  specified  in  the 
mortgage;  and  upon  this  foundation  all  suits  for  the  redemption  of  mortgages 
rest.  But  as  it  would  be  unjust  to  compel  the  mortgagee  to  wait  the  pleasure 
of  the  mortgagor,  the  latter  will  be  compelled  either  to  pay  the  money,  or  to 
relinquish  all  claim  to  the  mortgaged  property,  within  a  time  fixed  by  the 
court;  and  hence  foreclosure  suits  arise.  In  this  way,  nearly  the  whole  subject 
of  mortgages  has  passed  into  equity.  So  if  a  father,  who  owns  Blackacre  in 
fee  and  Whiteacre  in  tail,  devises  the  former  to  his  eldest  son,  and  the  latter 
to  his  younger  son,  the  former  will  take  them  both  at  law;  for  he  is  both  the 
heir  at  law  and  the  heir  in  tail  of  his  father,  and  as  such,  both  Blackacre  and 
Whiteacre  have  descended  to  him.  As  to  Blackacre,  the  father  has  not  at- 
tempted to  interrupt  the  course  of  descent;  as  to  Whiteacre,  he  has  made  tlie 
attempt,  but  he  has  not  succeeded.  But  a  court  of  equity  will  say  the  father 
clearly  did  not  mean  that  his  eldest  son  should  have  both  Blackacre  and  White- 
acre,  and  hence  it  will  put  him  to  his  election,  i.  e.,  if  he  insists  upon  keeping 
Whiteacre,  it  will  compel  him  to  give  the  younger  son  an  equivalent  out  of 
Blackacre.  Hence,  the  doctrine  of  election  is  a  purely  equitable  one.  So  the 
rule  that  whatever  ought  to  have  been  done  will  be  considered  as  having  been 
done,  is  wholly  the  creature  of  equity,  it  being  founded  upon  the  princii^le  that, 
as  a  court  of  equity  would  have  compelled  performance  of  the  duty,  it  will  put 
th£  parties  interested,  so  far  as  possible,  in  the  same  position  as  if  it  had  been 
performed.  Hence  the  doctrine  of  equitable  conversion,  and  other  doctrines  of 
a  kindred  nature. — Langdcll,  Nummary  of  Equity  Pleading,  2d  Edit.,  27-42. 


CHAP.  II.]  EMANUEL  COLLEGE  v.  EVANS  31 


CHAPTER  11. 

EQUITY  JURISDICTION  IS  EXCLUSIVE,  CONCURRENT, 

AUXILIARY  OR  SUPPLEMENTAL.' 

Section  1.    Exclusive  Jurisdiction. 


EMANUEL  COLLEGE  v.  EVANS. 

In  Chancery,  before  Lord  Keeper  Coventry/  1625. 

[1  Reports  in  Chancery  18.]^ 

That  the  Earl  of  Huntington  seized  in  fee  of  the  Mannor  of  North- 
Cahitry  with  Advowson  appendant,  and  for  j^ayment  of  Debts  by  way  of 
Mortgage,  25  Eliz.  made  a  Lease  for  500  years  of  the  said  Mannor  with 

'  It  has  occurred  to  me,  that  a  reference  to  the  mode  in  which  the  co-existing 
state  of  the  hiw  has  been  affected  as  regards  eacli  separate  class  of  cases  over 
which  the  jurisdiction  of  the  Court  of  Chancery  has  been  exercised,  would 
furnish  an  intelligent  and  not  unnatural  basis  for  arranging  the  order  in  which 
each  of  these  classes  should  be  treated.  Mr.  Fonblanque,  Mr.  Jeremy,  Sir 
George  Cooper,  and  Mr.  Justice  Story,  have,  also  in  reference  to  the  co-existing 
state  of  the  law,  ranged  the  jurisdiction  of  the  Court  of  Chancery  under  the 
three  heads  of  its  Exclusive,  its  Concurrent,  and  its  Assistant  Jurisdiction, 
but  I  have  not  found  that  classification  quite  satisfactory.  Practically,  a  com- 
plete catalogue  is  the  great  thing  wanted,  and  I  am  sure  that  a  person  writing 
on  this  subject,  will  be  excused  for  taking  that  arrangement  which  is  most 
convenient  to  himself,  provided  the  great  object  above  pointed  out  be  effected. 

The  above  classification  is  irrespective  of  the  Subjects,  but  looking  to  the 
jurisdiction  of  the  Court  of  Chancery  in  that  view,  it  will  be  found  that  the 
jurisdiction  of  the  court  as  affecting  legal  rights  and  liabilities,  has  been 
brought  into  action  as  regards  three  kinds  of  subjects. 

1.  Where  some  specific  property,  real  or  personal,  has  been  the  subject. 

2.  Where  no  specific  property  has  been  the  subject,  but  one  or  both  of  the 
parties  has  been  under  some  liability,  for  which  an  action  for  damages  might 
be  sustained,  or 

3.  Where  there  was  no  specific  property  in  dispute,  nor  was  there  any  right 
of  action  at  law,  but  one  of  the  parties  has  sought  to  establish  against  the 
other  some  claim  in  respect  of  which  the  law  was  silent,  and  to  which  therefore 
the  negative  state  of  the  law  would  have  afforded  an  effectual  defence  at 
law. — Spcnce,  Equity  Jurisdiction  of  the  Court  of  Chancery,  pp.  430-431. 

'  "In  our  Courts  of  Equity  general  rules  are  established  as  far  as  it  has 
been  judged  the  nature  of  things  would  admit,  especially  since  the  time  of 
my  Lord  Keeper  Coventry,  who  was  very  able  and  contributed  a  great  deal 
towards  modelling  the  Court  of  Chancery."  Lord  Hardwicke's  letter  to  Lord 
Karnes  on  the  Principles  of  Equity,  printed  in  Parkes'  Chancery,  Appendix, 
p.  508. 

^A  part  of  the  case  relating  to  other  points  has  been  omitted. 


32  EOSCAERICK  v.  BAETON  [part  i. 

x^ppurtenances,  not  mentioning  the  Advowson  by  express  name,  witii  a 
clause  of  Eedemption,  and  for  advancement  of  Learning  and  Eeligion, 
of  his  free  disposition  in  28  Eliz.  by  Deed  granted  the  said  Advowson  to 
Sir  Francis  Hastings,  and  others,  and  their  Heirs,  to  the  use  of  the  said 
Earl  for  Life,  Eemainder  to  the  Master,  Fellows,  &c.  of  the  said  College, 
and  their  Successors,  for  ever;  and  shortly  after  in  the  same  year  paid 
his  said  Debts,  and  for  valuable  Considerations  the  said  Earl  sold  the 
said  Mannor  to  the  said  Sir  Francis  Hastings,  yet  the  Advowson  was 
not  mentioned  in  the  said  Deed  of  Sale,  but  was  mentioned  in  the  Fine; 
which  this  Court  observed,  and  conceived  thereupon,  That  it  was  pur- 
posely omitted  in  the  Deed,  for  otherwise  the  Covenant  of  the  said  Earl 
had  been  broken ;  but  it  was  put  into  the  Fine  on  purpose  to  convey  the 
Advowson  to  the  said  Sir  Francis  Hastings,  during  the  Life  of  the  said 
Earl  only. 

And  this  Court  conceived  the  said  Advowson  being  leased  not  by 
special  Name,  but  as  appendant  to  the  Mannor,  and  that  only  by  way  of 
Counter-Security,  and  the  Mony  thereby  secured  but  100  I.  and  at  the 
Time  of  granting  the  said  Advowson  to  the  said  College,  the  said  Earl 
took  no  notice  of  the  said  Lease  of  500  years,  as  a  thing  of  validity,  for 
that  it  had  been  absurd  in  the  said  Grant  to  reserve  to  himself  an  Estate 
for  Life  after  500  years,  that  the  said  Lease  was  Assigned  by  the  said 
Earl  to  Afathew  Evans  the  Defendants  Uncle,  in  Trust  for  the  said  Sir 
Francis  Hastings,  for  securing  his  Purchase;  and  this  Court  conceived 
the  said  Lease  being  but  a  securitj^  and  that  Mony  paid,  the  said  Lease 
had  been  void,  as  well  against  the  said  College,  as  against  any  other;  and 
though  the  Mony  not  paid  at  the  day  but  afterwards,  the  said  Lease 
ought  to  be  void  in  Equity,  as  well  as  on  a  legal  Payment,  it  had  been 
void  in  Law  against  them.' 


EoscARRicK  V.  Barton  (1672),  1  Cases  in  Chancery  217,  219. — 
Chief  Justice  Hale.  By  the  growth  of  equity  on  equity,  the  heart  of 
the  common  law  is  eaten  out,  and  legal  settlements  are  destroyed;  and 
was  of  opinion,  there  is  no  colour  for  a  decree.    In  14  E.  II.  the  parlia- 

'  Spence,  Equity  Jurisprudence,  vol.  1,  p.  603,  says,  citing  this  case:  "At 
length,  in  the  reign  of  Charles  I,  it  was  established,  that  in  all  cases  of  mort- 
gage where  the  money  was  actually  paid  or  tendered,  though  after  the  [law] 
day  the  mortgage  should  be  considered  as  redeemed  in  equity,  as  it  would  have 
been  at  law  on  payment  before  the  day;  and  from  that  time  bills  began  to  be 
filed  by  mortgagees  for  the  extinction  or  foreclosure  of  this  equity,  unless 
payment  were  made  by  a  short  day  to  be  named.  lUit  length  of  time  might  be 
set  up  as  a  bar  to  redemption." 

"Itk.m.  if  a  feofliiiciit  be  iiiiide  upon  such  cf)n(liti(m,  tliat  if  the  foofTor  pay 
to  the  feoll'ee  at  a  certain  day,  &c.,  40  pounds  of  money,  that  then  the  feofTor 
may  reenter,  &c.,  in  this  case  the  feofTee  is  called  tenant  in  mortgage,  which  is 
as  much   as  to  say,  in   French,  as  mortgage,  and   in  Latin  mnrtuxim  vadium. 


CHAP.  II.]  CASBOENE  v.  SCAEFE  33 

ment  would  not  admit  of  redemption;  but  now  there  is  another  settled 
course;  as  far  as  the  line  is  given,  man  will  go;  and  if  an  hundred 
years  are  given  man  will  go  so  far,  and  we  know  not  whether  we  shall  go. 
An  equity  of  redemption  is  transferable  from  one  to  another  now,  and 
yet  at  common  law  if  he  that  had  the  equity  made  a  feoffment,  or  levied 
a  fine,  he  had  extinguished  his  equity  at  law;  and  it  hath  gone  far 
enough  alreadj^  and  we  will  go  no  further  than  precedents  in  the  matter 
of  equity  of  redemption,  which  hath  too  much  favour  already;  and  con- 
cluded there  should  be  no  decree  for  the  plaintiff  in  respect  of  the 
antiquity,  and  if  he  will  redeem,  he  must  come  in  time.  It  is  but  just  to 
foreclose  for  not  coming  in  time.  It  is  just  to  deny  redemption  if  he 
come  not  in  time.  And  a  decree  to  foreclose  a  tenant  in  tail  shall  bind 
his  issue  in  an  equity  of  redemption,  because  that  is  a  right  set  up  only 
in  a  court  of  equity:  and  so  may  be  here  extinguished;  and  the  estate 
moved  from  Charles  to  the  mortgagee,  and  not  from  the  plaintiff;  and 
Charles  was  the  visible  possessor  and  owner.  And  it  is  a  great  sore,  that 
mortgagees  are  but  bailiffs;  and  the  limitation  to  Chaumond  was  but 
voluntary,  and  so  the  plaintiff's  pretence  is  not  to  be  supported  against 
a  purchaser,  for  so  a  mortgagee  is;  and  here  it  is  made  absolute  by  the 
decree ;  and  if  there  be  divers  remainders  of  the  equity,  there  is  no  reason 
to  make  them  all  parties.' 


Casborne  v.  Scarfe  (1737),  1  AtJcyns  603,  605." — Lord  Chancellor 
[Hardwicke]  :     This  question  depends  on  two  considerations. 

And  it  seemeth,  that  the  cause  why  it  is  called  mortgage  is,  for  that  is  doubt- 
ful whether  the  feoff er  will  pay  at  the  day  limited  such  sum  or  not ;  and  if 
he  doth  not  pay,  then  the  land  which  is  put  in  pledge  upon  condition  for  the 
payment  of  the  money,  is  taken  from  him  forever,  and  so  dead  to  him  upon 
condition,  etc.  And  if  he  doth  pay  the  money,  then  the  pledge  is  dead  to  the 
tenant,   etc."     Co.   Litt.   205a. 

"As  to  the  origin  of  mortgages:  From  what  is  said  of  them  in  this  chapter, 
it  appears  that  they  were  introduced  less  upon  the  model  of  the  Roman  pignus 
or  hypotheca  than  upon  the  common-law  doctrine  of  condition."  Hargrave's. 
Note. 

^  This  outburst  of  Chief  Justice  Hale  is  said  to  have  been  caused  by  the 
remark  of  Lord  Keeper  Finch  in  Bacon  v.  Bacon  (1639-40),  Toth.  133,  that 
"the  court  will  relieve  a  mortgage  to  the  tenth  generation,  though  the  pur- 
chaser had  no  notice."  In  King  v.  Suddis  (1801)  1  East  314,  Lord  Kenyon 
called  Sir  IMatthew  Hale  "one  of  the  greatest  and  best  men  who  ever  sat  in 
judgment." 

-8.  8.  II  White  and  Tudor s  Leading  Cases  in  Equity,  Pt.  2,  p.  *  1035,  icith 
notes. 

In  GoodUttle  v.  Ohcuy  (1797)  7  T.  R.  416,  Lord  Kenyon  said  of  Hard- 
wicke: "1  am  old  enough  to  remember  that  great  judge,  though  but  for  a 
short  time  before  he  left  the  Court  of  Chancery;  and  the  knowledge  of  those 


34  PHELPS  V.  SAGE  [part  l 

First,  Wliat  sort  of  interest  an  equity  of  redemption  is  considered 
to  be  in  this  court? 

First,  An  equity  of  redemption  has  always  been  considered  as  an 
estate  in  the  land,  for  it  may  be  devised,  granted,  or  entailed  with 
remainders,  and  such  entail  and  remainders  may  be  barred  by  a  fine 
and  recovery,  and  therefore  cannot  be  considered  as  a  mere  right  only, 
but  such  an  estate  whereof  there  may  be  a  seisin;  the  person  therefore 
entitled  to  the  equity  of  redemption  is  considered  as  the  owner  of  the 
land,  and  a  mortgage  in  fee  is  considered  as  personal  assets. 

By  a  devise  of  all  lands,  tenements  and  hereditaments,  a  mortgage  in 
fee  shall  not  pass  unless  the  equity  of  redemption  be  foreclosed;  and 
if,  after  such  devise  made,  a  foreclosure  is  had,  yet  such  estate  shall  not 
pass  by  those  general  words  of  lands,  tenements,  and  hereditaments,  be- 
.i^ause  a  foreclosure  is  considered  as  a  new  purchase  of  the  land. 

The  interest  of  the  land  must  be  somewhere,  and  cannot  be  in  abey- 
.ance;  but  it  is  not  in  the  mortgagee,  and  therefore  must  remain  in  the 
mortgagor.  A.  devises  his  estate  and  after  makes  a  mortgage  in  fee, 
though  that  is  a  total  revocation  in  law,  yet  in  this  court  it  is  a  revoca- 
tion pro  ianto  only. 

It  is  certain  tho  mortgagee  is  not  barely  a  trustee  to  the  mortgagor, 
but  to  some  purposes,  videlicet,  with  regard  to  the  inheritance  he  cer- 
tainly is,  till  a  foreclosure. 


PHELPS  V.  SAGE. 

Supreme  Court  of  Errors,  Connecticut,  1805. 

[2  Day  151.] 

This  was  an  action  of  ejectment;  to  which  the  general  issue  was 
pleaded.' 

In  the  further  progress  of  the  trial,  it  appeared,  that  the  plaintiff 
claimed  under  a  mortgage  deed,  and  the  defendant  under  a  subsequent 
absolute  deed,  from  the  same  person.  In  order  to  shew,  that  the  plain- 
tiff's title  was  divested,  the  defendant  offered  to  prove,  that  after  the 
expiration  of  the  law-day,  the  whole  mortgage  money  was  paid  to  the 
plaintiff's  satisfaction.     To  the  admission  of  this  evidence  tlio  iilaintiff 

who  livod  bfforc  mo  only  foriilicd  inc  in  tlic  opinion  I  formed  of  him,  that 
liis  knowlcilgo  of  tlic  i;i\v  was  most  extraordinary;  he  had  been  trained  up 
very  early  in  tlie  pursuit,  he  had  great  industry  and  abilities,  and  was,  in 
hhort,  a  eonsummate  master  of  the  profession." 

T>ord  Eldon  put  ITardwicke.  above  his  doubts:  "There  is  the  authority  of 
Lord  Ilardvvicke  upon  the  point,  which  would  weigh  down  tlie  most  con- 
.-idcrablc  dou])t  that  1  could  be  disposed  to  entertain."  Ex  parte  Ruffin 
(IHOl)    0   y<:sn/,  12(5. 

'  A  part  of  the  case  relating'  1o  the  (pu'stion  of  estoppel  by  a  void  deed  has 
been  omitted. 


CHAP.  II.]  PARSONS  V.  WELLES  35 

objected,  alleging  that  no  payment  of  the  money,  or  settlement  of  the 
debts,  after  the  law-day  had  expired,  could  divest  the  plaintiff's  title,  and 
revest  it  in  the  mortgagor,  but  that  the  remedy  was  by  application  to  a 
court  of  chancery.  On  this  principle,  the  Court  rejected  the  evidence. 
To  the  ruling  of  the  Court,  in  both  instances,  the  defendant  filed  his  bill 
of  exceptions. 

Smith,  (of  Woodbuiy,)  for  the  plaintiff  in  error. 

The  Superior  Court  erred,  by  rejecting  our  testimony,  to  shew,  that 
the  mortgage  debt  was  paid,  to  the  full  satisfaction  of  the  mortgagee. 
By  the  acceptance  of  the  money,  he  waived  any  advantage,  which  he 
might  have  had  by  the  lapse  of  the  law-day. 

Daggett,  for  the  defendant  in  error. 

The  payment  of  the  mortgage  money,  after  the  law-day,  could  only 
give  a  right  to  redeem.  The  legal  title  was  in  the  plaintiff,  and  would 
there  remain  until  she  should  transfer  it  to  another.  The  only  relief  for 
the  mortgagor  is  in  chancery.  Infinite  mischiefs  would  accrue,  if  the 
jury  were  permitted,  on  the  general  issue,  to  settle  the  business  between 
the  mortgagor  and  mortgagee. 

By  the  Court  (unanimously).    The  judgment  was  affirmed.* 


PARSONS  V.  WELLES. 

Supreme  Judicial  Court,  1821. 

[17  Massachusetts  419.]' 

Trial  was  had  here?  on  the  general  issue,  before  Wilde  J.  February 
term  1819. — The  facts  stated  in  the  report  of  the  judge,  and  those  ap- 
pearing by  the  papers  referred  to  in  that  report,  are  briefly  these. — In 
January  1800,  Ellis,  who  was  the  former  owner  of  the  demanded  prem- 
ises, conveyed  a  part  thereof  in  fee  and  in  mortgage  to  one  Willia7n 
Cahot,  and  in  the  following  March  conveyed,  in  like  manner,  another 
part  thereof  to  one  James  Otis:  after  which  he  made  and  executed  the 
two  mortgage  deeds,  under  which  the  demandant  claims;  one  dated  in 
October  1804,  and  the  other  in  December  1805.  These  deeds  to  the  de- 
mandant included  the  lands  mortgaged  to  Cahot  and  Otis,  and  some 
other  lands.     The  deeds  to  Cahot  and  Otis  were  duly  acknowledged,  and 

^  "Now.  it  is  well  settled,  in  this  state,  that  if  the  mortgagor  pays  the  debt 
after  the  law  day  has  expired,  he  cannot  sustain  an  action  at  law  against 
the  mortgagee  for  the  possession,  nor  can  anyone  claiming  title  under  him. 
He  must  first  get  in  the  legal  title."  Per  Waite,  J.  Doton  v.  Russell  (1845) 
17  Conn.  146,  154. 

-  Parts  of  the  opinion  discussing  the  rights  of  a  second  mortgagee,  the  effect 
of  particular  iMassachusetts  Statutes,  and  the  powers  of  the  mortgagee  to 
harass  the  mortgagor,  have  been  omitted. 


36  PARSONS  V.  WELLES  [part  i. 

recorded  in  the  registry  of  deeds,  previously  to  the  execution  of  the  mort- 
gages to  the  demandant ;  and  have  since  been  duly  assigned  to  the  pres- 
ent tenants. 

Ellis  not  having  paid  the  money,  according  to  his  stipulations  in  his 
deeds  to  Cabot  and  Otis,  they  severally  instituted  suits  against  him, 
to  recover  possession  of  the  lands  mortgaged  to  them;  and  judgments 
being  recovered  by  them,  possession  was  duly  delivered  to  them,  accord- 
ing to  their  respective  rights,  by  virtue  of  writs  of  hahere  facias 
possessionem. 

Evidence  was  offered  by  the  demandant,  to  prove  that  after  possession 
was  thus  delivered,  Ellis  paid  the  amount  due  on  both  those  mortgages. 
The  tenants  objected  to  the  admission  of  this  evidence,  on  the  ground  that 
payment  alone,  after  the  mortgagee's  estate  had  become  absolute,  and 
after  judgment  for  possession,  and  entry  after  condition  broken,  was  not 
sufficient  to  defeat  their  legal  estate. — The  judge  overruled  this  objection, 
not,  as  he  states,  because  he  thought  it  unfounded ;  but  for  the  purpose 
of  settling  the  question  of  fact  as  to  the  payment,  and  to  prevent  a  new 
trial  in  case  the  court  should  be  of  opinion  that  such  evidence  was 
admissible. 

A  verdict  was  returned  for  the  demandant,  which  was  to  be  set  aside 
and  a  new  trial  granted,  if  the  evidence  was  inadmissible ;  otherwise 
judgment  was  to  be  rendered  on  the  verdict. 

Wilde  J.  delivered  the  opinion  of  the  court. — The  question  of  law 
arising  in  this  case,  and  which  is  now  to  be  determined,  is,  whether  the 
evidence  of  the  payment  by  Ellis  was  properly  admitted: — or  in  other 
words,  whether,  after  failure  by  the  mortgagor  to  pay  the  amount  due 
on  the  mortgage,  and  judgment  recovered  and  possession  received  by  the 
mortgagee,  the  payment  of  the  principal,  interest  and  costs  does  ipso 
facto  defeat  the  estate  of  the  mortgagee,  so  that  the  mortgagor  may 
lawfully  enter,  or  maintain  ejectment  for  the  recovery  of  possession. — 
This  is  a  question  of  considerable  difficulty,  and  leads  to  the  considera- 
tion of  points,  upon  which  learned  judges  and  jurists  have  held  different 
opinions.  This  difference  of  opinion  has  probably  arisen  in  part  from 
the  peculiar  nature  of  the  contract  of  mortgage;  but  principally,  I  appre- 
hend, from  a  disposition,  in  most  of  the  judges  of  late  years,  to  adopt 
the  rules  of  equity;  and  to  combine  them  in  practice,  as  far  as  possible, 
with  the  principles  and  rules  of  the  common  law. 

Thf!  antient  doctrine  of  the  common  law,  in  respect  to  mortgages,  was 
plain  and  well  understood.  By  a  conveyance,  by  way  of  mortgage  in 
fee,  all  the  mortgagor's  title  passes  to  the  mortgagee;  subject  however  to 
be  defeated  by  the  performance  of  the  condition.  But  if  the  condition 
be  not  strictly  performed  by  the  mortgagor,  the  estate  of  the  mortgagee 
becomes  absolute;  no  right  remaining  to  the  mortgagor  afterwards  to 
redeem.  "  Tf  he,"  Cthe  mortgagor)  says  Littleton,  §  3.32.  "doth  not  pay, 
"then  llic  IjukI,  which  is  put  in  pledge  upon  condition  for  the  pa>Tnent 
"fif  tlif  inoney,  is  taken  from  him  forever,  and  so  dead  to  him   upon 


CHAP.  II.]  PARSONS  V.  WELLES  37 

"  condition  &c.  And  if  ho  doth  pay  the  money,  then  the  pledge  is  dead 
"  as  to  the  mortgagee."  "  In  case  of  failure,"  (to  perform  the  condition) 
says  Blackstone,  "  the  mortgagee  may  enter  and  take  possession  without 
"any  possibility  at  law  of  being  afterwards  evicted  by  the  mortgagor." 
2  Comm.  158.  So  that  a  mortgage,  although  a  pledge  at  first,  becomes 
an  absolute  interest,  unless  redeemed  at  the  time  limited  for  the  pay- 
ment of  the  money,  or  other  performance  of  the  condition.  If  it  be  not 
literally  performed  by  payment  of  the  money  at  the  day,  the  estate 
becomes  subject  to  the  dower  of  the  wife  of  the  mortgagee,  and  to  all 
other  incumbrances  by  him ;  although  the  money  should  be  afterwards 
paid,  and  the  estate  reconveyed  to  the  mortgagor. — Powell  on  Mortgages 
9,   10. 

To  avoid  the  inconvenience  and  injustice,  to  Avhich  the  mortgagor 
might  be  thus  exposed,  it  has  been  usual  in  England  to  substitute  mort- 
gages for  a  long  term  of  years,  for  mortgages  in  fee:  and  this  practice 
prevailed  very  generally,  until  the  courts  of  equity  interferred ;  who  held 
that  the  power  of  redemption  was  an  equitable  right,  inherent  in  the 
land,  and  binding  all  persons,  whether  claiming  in  the  per,  that  is,  by 
the  act  of  the  mortgagee,  as  tenant  in  dower,  by  statute  staple,  elegit 
&c. ;  or  in  the  post,  that  is,  by  the  act  of  the  law,  as  tenant  by  the  curtesy, 
and  the  lord  by  escheat.— Powell  11.— Cro.  Car.  191.— Hard.  465,  469. 

But  although  the  legal  estate  is  absolute  at  law  in  the  mortgagee  after 
forfeiture,  yet  the  courts  of  equity,  after  their  jurisdiction  became  well 
established  in  England,  thought  that  conscience  and  equity  required 
them  to  break  in  upon  the  common  law,  and  to  grant  relief  by  permitting 
the  mortgagor,  at  any  reasonable  time,  to  redeem.  Still  however  the 
courts  of  equity  admitted  the  legal  estate  to  be  in  the  mortgagee;  but 
they  considered  him  as  the  trustee  of  the  mortgagor  until  a  foreclosure : 
thereby  turning  the  mortuum  into  a  kind  of  vivum  vadium.  They 
however  allowed  the  mortgagee  to  call  upon  the  mortgagor  to  redeem 
presently,  or  in  default  thereof  to  be  forever  foreclosed.  And  they  gen- 
erally refused  to  interfere  in  favour  of  the  mortgagor,  after  twenty  years' 
possession  by  the  mortgagee.  If  there  were  no  foreclosure,  nor  such 
length  of  possession  by  the  mortgagee,  the  mortgagor  was  considered  the 
true  owner,  a  mortgage  being  considered  as  a  mere  security  for  the  debt, 
even  after  forfeiture :  and  of  course  the  discharge  of  the  debt  was  held 
to  be  a  determination  of  the  interest  of  the  mortgagee,  and  of  all  claim- 
ing under  him.  1  Vern.  361. — Powell,  141,  142. — Prec.  Chanc.  99. — 
Bernard.  93.— 1   Ves.  361. 

It  cannot  be  denied,  that  these  principles  and  rules  of  the  courts  of 
equity  have  had  a  favourable  operation  in  the  administration  of  justice, 
and  have  afforded  relief  where,  by  the  strict  principles  of  the  common 
law,  the  mortgagor  was  without  remedy.  They  were  conformable  to  the 
spirit  of  the  mortga^ge  contract,  and  it  is  not  surprising  that  they  should 
have  gained  some  footing  in  the  courts  of  common  law.  It  may  be 
doubted  however,  whether  in  some  particulars  they  have  not  been  adopted 


38  PAESONS  V.  WELLES  [part  i. 

to  an  extent,  inconsistent  with  the  established  rules  of  the  common  law. 
In  the  case  of  Martin  vs.  Mowlin,  2  Burr.  978,  lord  Mansfield  is  reported 
to  have  said,  that  "  a  mortgage  is  a  charge  upon  the  land ;  and  whatever 
"  would  give  the  money,  will  carry  the  estate  in  the  land  along  with  it, 
"to  every  purpose.  The  estate  in  the  land  is  the  same  thing  as  the 
"  money  due  upon  it.  It  will  be  liable  to  debts ;  it  will  go  to  executors ; 
*'  it  will  pass  by  a  will  not  made  and  executed  with  the  solemnities  re- 
"  quired  by  the  statute  of  frauds.  The  assignment  of  the  debt,  or  f or- 
" giving  it,  will  draw  the  land  after  it,  as  a  consequence:  nay,  it  would 
"  do  it,  though  the  debt  were  forgiven  only  by  parole ;  for  the  right  to  the 
"  land  would  follow,  notwithstanding  the  statute  of  frauds." 

No  authorities  are  cited  in  support  of  these  remarks,  and  it  seems  to 
me  extremely  difficult  to  reconcile  some  of  them  with  well  established 
principles  of  law,  or  with  the  true  intention  of  the  statute  of  frauds. 
Judge  Trowhridge  was  of  opinion,  that  they  were  accompanied  with  some 
restrictions,  which  the  reporter  omitted  to  notice:  because  he  acknowl- 
edges, in  his  preface,  that  he  did  not  always  take  down  the  restrictions, 
with  which  the  speaker  might  qualify  a  proposition,  to  guard  against  its 
being  understood  universally,  or  in  too  large  a  sense.  See  8  Mass.  Rep. 
558.  This  appears  to  be  probable,  for  it  is  impossible,  as  it  seems  to  me, 
to  suppose  that  lord  Mansfield  meant  to  assert  that  "  the  estate  in  the 
land  is  the  same  thing  as  the  money  due  upon  it,"  without  some  qualifi- 
cation of  the  expression.  This  would  confound  all  our  notions,  and 
break  down  every  distinction  between  real  and  personal  estate;  between 
a  title  in  land  and  choses  in  action ;  between  mortgages  in  fee  and  mort- 
gages for  a  term;  and  between  mortgages  of  land  and  mortgages  of 
goods. 

Probably  lord  Mansfield  intended  to  say  nothing  more  than  that  the 
estate  of  the  mortgagee  is  worth  no  more  than  the  debt,  and  is  dependent 
upon  it;  that  the  discharge  of  the  debt,  at  the  time  stipulated  for  pay- 
ment, would  defeat  the  mortgagee's  estate ;  and  even  payment  afterwards 
would  have  the  same  effect,  by  the  aid  of  the  court  of  chancery:  or 
without  such  aid,  by  virtue  of  the  statute  of  7  Geo.  2,  c.  20,  which  pro- 
vides that  the  mortgagee  shall  maintain  no  ejectment,  after  payment 
or  tender  by  the  mortgagor,  of  principal,  interest  and  costs.  All  this 
would  be  true,  and  in  some  measure  justify  the  expression  imputed  to 
lord  Mansfield;  which,  withnv;t  some  such  restriction  or  qualification, 
cannot,  I  think,  be  held  for  law. 

Nor  can  it  bo  true,  as  Judge  Trowhridge  has  shewn,  by  very  cogent 
arguments,  "  tbnt  the  assignment  of  the  debt  will  draw  the  land  after  it, 
as  a  consequence,"  to  every  purpose.  It  can  only  be  so  by  the  aid  of  a 
court  of  equity.  In  a  court  of  equity  the  debt  is  the  principal,  and  the  mort- 
gage is  the  accessory.  And  it  is  there  hold  tliat,  as  the  mortgagee  holds 
the  estate  in  trust  for  llic  mortgagor;  so  when  the  debt  is  assigned,  he 
becomes  a  trustee  for  tlic  l)onefit  of  the  person  having  an  interest  in  the 
debt.     Omne  principale  trahit  ad  se  accessorium.     This  too  was  one  of 


CHAP.  II.]  PAKSONS  V.  WELLES  39 

the  grounds  suggested  by  judge  Spencer,  for  the  opinion  in  the  case 
of  Green  vs.  Hart,  1  Johns.  580,  in  which  it  was  held  that  the  transfer  of 
a.  note,  secured  by  mortgage,  being  in  writing,  the  mere  delivery  of  the 
mortgage  security  was  a  sufficient  assignment.  It  is  true  that  judge 
Spencer  remarks,  that  "  mortgages  are  not  now  considered  as  convey- 
ances of  lands,  within  the  statute  of  frauds."  I  know  that  this  opinion 
has  prevailed  in  courts  of  equity;  but  I  have  not  been  able  to  find  any 
decided  case,  to  support  it  at  law :  and  it  appears  to  me  against  the  letter 
and  intent  of  the  statute. 

But  however  this  may  be,  it  can  have  but  little  bearing  on  the  point  in 
question.  It  is  important  only,  so  far  as  it  may  shew  the  nature  and 
quality  of  an  estate  by  mortgage. 

The  question  now  to  be  decided  is,  what  is  the  remedy  for  the  mort- 
gagor, after  payment  of  the  debt,  if  the  mortgagee,  having  entered  for 
condition  broken,  refuses  to  relinquish  the  possession.  And  this  court 
are  all  of  opinion,  that  it  is  by  a  bill  in  equity,  and  that  this  is  the  only 
remedy.  This  was  the  doctrine  held  by  the  court  in  the  case  of  Hill  vs. 
Payson  &  al.  3  Mass.  Rep.  560;  and  it  has  been  frequently  so  ruled  at 
nui  prius.  It  is  a  doctrine,  which  is  well  supported  hy  the  principles  of 
the  common  law,  as  I  think  I  have  shewn :  and  it  is  strongly  implied, 
if  not  expressly  declared,  in  all  the  statutes  relating  to  the  subject. 

The  remedy  thus  provided  is  by  a  bill  in  equity;  and  the  courts  are 
directed,  in  such  cases,  to  enter  up  judgment  agreeably  to  equity  and 
good  conscience;  and  by  the  statute  last  referred  to,  they  are  authorized 
to  adjudge  and  determine  what  shall  be  a  reasonable  and  equitable  per- 
formance of  the  condition  of  the  deed.  If  the  mortgagee  has  made  dis- 
bursements for  repairs  &c.  above  the  amount  of  the  rents  and  profits, 
the  court  is  to  make  the  computation.  The  court  also  is  to  judge  of  the 
evidence  of  payment,  and  may  decide  the  case  without  the  intervention 
of  a  jury:  all  of  which  provisions  are  inconsistent  with  the  forms  of 
proceeding  in  real  actions. 

Thus  has  stood  the  law  of  Massachusetts  for  more  than  a  century.  And 
whatever  doubts  may  remain  as  to  the  legal  estate  of  the  mortgagee  in 
certain  cases,  the  remedy  for  the  mortgagor  seems  to  be  sufficiently  plain. 
It  is  an  adequate  and  convenient  remedy,  and  well  adapted  to  the  great 
end  of  all  judicial  proceedings,  the  doing  of  impartial  justice  to  all 
parties.  For  while,  on  the  one  hand,  it  moderates  the  rigour  of  the 
common  law  for  the  benefit  of  the  mortgagor;  it  compels  him,  on  the 
other  hand,  to  perform  whatever  justice  and  equity  may  require,  for  the 
benefit  of  the  mortgagee.  It  is  as  beneficial  to  the  mortgagor  as  a  suit 
at  law,  and  may  sometimes  be  more  so ;  for  if  the  evidence  of  payment  be 
doubtful,  the  mortgagee  may  be  compelled  to  answer  under  oath  to  the 
fact. 

It  is  certainly  more  beneficial  to  the  mortgagee;  for  it  compels  the 
mortgagor,  when  he  applies  for  equity,  to  do  equity.  If  ejectment 
would  lie  for  the  mortgagor,  upon  payment  of  the  debt,  the  mortgagee 


40  OKD  V.  JOHNSTON  [part  i. 

^\'oulJ  have  no  remedy,  to  recover  any  disbursements,  made  by  him  for 
repairs;  for  his  right  to  demand  these  depends,  either  upon  the  statute, 
or  the  rules  of  equity.  They  are  unknown  to  the  common  law,  which  con- 
siders the  mortgagee  as  the  absolute  owner. 

Some  other  questions  have  been  argued,  which  it  is  now  unnecessary  to 
decide. —  It  is  the  opinion  of  the  court  that  the  demandant  is  entitled  to 
judgment  for  the  lands,  which  were  not  included  in  the  mortgages  to 
Cabot  and  Otis,  and  not  for  the  other  parcels  demanded. 


OED  V.  JOHNSTON. 

In  Chancery,  before  Vice  Chancellor  Stuart,  1855. 
[1  Jurist,  New  Series,  1063.] 

Tlie  bill  in  this  case  alleged  that  the  plaintiff  and  the  defendants 
entered  into  an  agreement,  whereby  the  defendants  were  to  be  appointed 
solicitors  for  a  certain  railway  company  and  were  to  divide  the  fees  and 
income  resulting  from  the  solicitorship  with  the  plaintiffs. 

The  prayer  of  the  bill  was  that  the  aforesaid  agreement  might  be 
declared ;  for  specific  performance  of  the  agreement  for  an  account  and 
payment  of  what  might  be  found  to  be  due ;  for  a  receiver  and  an  injunc- 
tion to  restrain  the  getting  in  and  receiving  outstanding  monies;  and  for 
further  relief. 

The  defendants'  plea  having  been  overruled,  they  answered  denying 
breach  of  the  agreement.' 

Sir  J.  Stuart,  V.  C,  said — This  is  a  bill  of  a  very  unusual  kind,  and 
there  are  palpable  objections  to  the  relief  sought  by  the  plaintiff,  both  in 
point  of  form  and  in  point  of  substance.  These  objections  seem  to  me 
to  be  insurmountable.  In  point  of  form,  the  bill  asks  in  technical 
language  for  the  specific  perform.ance  of  an  agreement  between  the  plain- 
tiff and  the  defendants  of  the  8th  October,  1844.  It  asks  for  the  specific 
performance  of  the  agreement  by  asking  an  account  of  the  profits  derived 
by  the  defendants  from  a  certain  employment,  in  Avhich  profits,  according 
to  the  terms  of  that  agreement,  the  plaintiff  says  he  was  entitled  to  share 
in  certain  proportions.  The  jurisdiction  of  specific  performance  is  one 
which  seems  to  me  to  be  wholly  ina])j)licable  to  such  a  case  as  this.  It  is 
a  jurisdiction  which  is  always  said  to  be  discretionary  in  the  Court.  It 
is  a  jurisdiction  assumed  by  this  Court  for  the  more  perfect  administra- 
tion (if  justice — for  giving  to  persons  having  a  right  under  an  agreement 
tbc  very  specific  thing  according  to  the  provisions  of  the  agreement,  and 
is  intended  to  give  more  (>ffectual  relief  in  the  case  to  whicli  it  applies; 
because,  according  to  proceedings  of  Courts  of  law  upon  the  breach  of 

'A  Hhortoncd  Htiitoiiifiit  of  facts  is  s\il)stit\itod  for  that  of  the  report. 


tii.u'.  II.]  PETER  V.  RICH  41 

an  agreement,  what  a  Court  of  law  does  is  to  give  compensation  in 
money,  which  shall  amount  to  an  equivalent  to  that  which  the  agreement 
had  stipulated  should  be  performed.'  The  whole  scoi^e  and  object  of  this 
bill  are  for  a  purely  money  demand;  and  it  is  admitted  by  the  plaintiif's 
counsel  during  their  struggle  against  the  very  obvious  objections  to  this 
bill  with  which  they  have  had  to  contend,  that  if  the  mere  amount  of 
profits  was  ascertained,  they  would  be  entitled  to  recover  that  amount  by 
an  action  at  law;  shewing  that  all  that  is  asked  from  this  Court  in  the 
shape  of  relief  under  the  jurisdiction  of  specific  performance  is  a  com- 
pensation in  money  on  the  footing  of  an  account." 

Sir  J.  Stuart,  V.  C. — Order  that,  the  defendants  not  asking  for  costs, 
the  bill  be  dismissed. 


Section  2.    Concurrent  Jurisdiction. 


PETER  V.  RICH. 

In  Chancery,  1630. 

[1  Reports  in  Chancery  34.] 

That  the  Plaintiff  and  Defendant  with  one  Southcot  and  Grimes  be- 
came bound  to  the  Lord  Ruff  el  in  two  Bonds  of  IGOO  Z.  apiece  for  pay- 
ment of  800  L,  100 1,  being  Purchase  Mony,  and  the  Plaintiff  and 
Defendant  entred  into  two  Counterbonds  to  the  said  Southcot  for  his 
Indempnity,  and  the  first  Bond  of  800  I.  was  paid,  and  the  Plaintiff  and 
Defendants  Richard  Sheppard  came  to  account,  upon  which  the  Plaintiff 
appeared  to  have  paid  all  his  part  of  the  said  Purchase  Mony  save  40  I. 
for  which  the  Plaintiff  gave  the  Defendant  Rich  alone  a  Bond  of  80  I. 
and  thereupon  was  to  be  freed  by  the  said  Defendants  of  the  800  I.  Bond, 
and  was  to  give  over  the  said  Purchase  wholly  unto  them;  yet  notwith- 
standing 100  I.  of  the  said  Purchase  Mony  being  not  paid,  the  Plaintiff 
was  compelled  to  pay  the  same,  being  formerly  bound  with  the  De- 
fendants in  the  said  Bond  of  1600  I.  together  with  5  I.  Interest  thereof, 
which  said  105  I.  this  Court  conceived  ought  to  have  been  paid  by  the 

^  The  balance  of  the  opinion  relating  to  the  doctrine  of  mutuality  and  dis- 
cussing the  bill  as  one  to  account  for  personal  profits,  lias  been  omitted. 

-  "I  am  of  opinion  that,  inasmuch  as  this  Bill  prays  a  delivery  of  tho 
Certificates  which  would  constitute  the  Plaintiff  the  Proprietor  of  a  certa^in 
quantity  of  Stock,  the  Bill  in  Equity  will  hold:  because  a  Court  of  Law 
could  not  give  the  Property,  but  could  only  give  a  remedy  in  Damages,  the 
beneficial  effect  of  which  must  depend  upon  the  personal  responsibility  of  the 
Party."    Per  Sir  John  Leach  in  Dolorct  v.  Rothschild  ( 1823)  I  S.  &  S.  590,  598. 


42  HOLE  V.  HAKRISON  [part  i. 

said  Sheppard  as  the  Residue  of  his  part  of  the  said  Purchase  Mony, 
but  the  said  Sheppard  being  insolvent,  the  said  105  I.  in  the  Opinion  of 
this  Court  ought  to  be  equally  paid  and  born  by  the  Plaintiff  and  De- 
fendant Rich,  and  decreed  accordingly.' 


HOLEv.  HARRISON. 

In  Chancery,  1676. 

[1   Cases  in   Chancery   246.] 

Hole,  Harrison  and  S.  were  bound  in  a  recognizance  to  the  chamberlain 
of  London.  The  plaintiff  Harrison  was  sued  thereon,  and  paid  the  whole 
money,  and  now  sued  Hole,  who  was  bound  with  him  for  contribution. 
Hole,  Harrison  and  S.  being  all  bound,  and  J.  H.  was  dead  insolvent, 
and  S.  was  run  away.  The  question  was  in  what  proportion  the  contribu- 
tion should  be,  viz.  of  a  third  or  moiety?  Decreed  a  moiety,  for  S.  is 
insolvent.' 


COWELL  V.  EDWARDS. 

Court  of  Common  Pleas,  1800. 

[2  B'Osanquet  and  Puller  268.] 

Indebitatus  assumpsit  for  money  paid. 

John  Cornell  the  plaintiff's  intestate  having  entered  into  a  joint  and 
several  bond  with  seven  other  persons,  two  of  whom  were  principals  and 
the  five  others  as  well  as  himself  sureties,  was  together  with  his  co- 
sureties called  upon  by  the  obligees  to  pay  the  sum  engaged  for;  the 
defendant  and  two  of  the  other  sureties  paid  each  a  part  of  that  sum, 

'  In  Hyde  v.  Tracy  (1807)  2  Day  401,  494,  Daggett  and  Goddard,  counsel, 
received  a  judgment  on  the  following  statement  of  principle:  "Chancery  in- 
terferes not  merely  where  there  can  he  no  remedy  at  law,  hut  where  such  rem- 
edy under  all  the  circumstances  of  the  case,  will  not  meet  its  exigencies.  In 
this  case  it  might  ruin  the  petitioner,  to  pay  the  whole,  and  then  go  to  law 
for  a  contribution.  In  (Jreat  Britain  it  is  the  constant  practice  to  go  into 
cliancery  to  obtain  a  contribution." 

■■"'The  plaintiir  has  ])aid  under  his  liability  as  surety,  a  sum  of  fSOO:  there 
is  no  question  but  that  he  is  entitled  to  contribution  from  each  of  the  other 
ff)ur  sureties,  one-fifth  of  the  amount  i)aid,  that  is,  if  all  were  able  to  pay. 
I'.ut  F.  Green  is  quite  unable.  Therefore  the  plaintiff  has  a  right  to  recover 
from  the  other  three,  one-fourth  of  the  sum  paid  by  him."  Per  Sir  li.  T.  Kin- 
dcrnlcy,  V.  €.,  in  llitchmnn  v.  Stcimrt   (1855)   3  Drew.  271. 


CHAP.  II.]  COLWELL  V.  EDWARDS  43 

but  the  present  plaintiff's  intestate  paid  the  residue.  Fpon  this  the 
PJaintiff  considering  the  Defendant  and  one  of  the  two  sureties  who 
had  already  contributed  as  the  only  solvent  sureties,  called  upon  them  to 
pay  their  proportion  and  now  brought  this  action  to  recover  from  the 
defendant  such  a  sum  of  money,  as  when  added  to  what  had  been  already 
paid  by  him  would  make  up  one-third  of  the  whole  sum  paid  to  the 
obligees,  deducting  only  what  had  been  contributed  by  the  fourth  surety 
not  called  upon  at  this  time. 

The  cause  was  tried  before  Lord  Eldox  Ch.  J.  at  the  sittings  after 
last  Easter  term,  when  the  plaintiff  obtained  a  verdict  for  a  sixth  of 
the  whole  sum  paid,  not  allowing  for  the  sum  paid  by  the  fourth  surety, 
with  liberty  to  move  the  court  to  enter  a  verdict  for  the  whole  demand. 

Lens  Serjt.  however  on  the  part  of  the  defendant  obtained  a  rule  call- 
ing upon  the  plaintiff  to  shew  cause  why  this  verdict  should  'not  be  set 
aside  altogether  and  a  new  trial  be  had.  He  took  these  objections;  that 
this  action  could  not  be  maintained  at  law  by  one  co-surety  against 
another;  that  if  the  action  could  be  maintained  for  one-sixth  of  the  whole 
sum  engaged  for  and  which,  under  the  circumstances  of  the  present 
case,  he  insisted  was  all  that  could  be  recovered  from  the  defendant;  yet, 
that  the  insolvency  of  the  two  principals  and  of  the  three  other  co- 
sureties should  have  been  proved  in  order  to  entitle  the  plaintiff  to  the 
present  verdict. 

Shepherd  and  Vauglian  Serjts.  were  proceeding  on  this  day  to  shew 
cause,  and  cited  Deering  v.  Lord  Winchelsea  (1  Cox  ch.  318,)  '  when 
they  were  stopped  by 

The  Court,  who  observed  that  it  might  now  perhaps  be  found  too  late 
to  hold  that  this  action  could  not  be  maintained  at  law,^  though  neither 
the  insolvency  of  the  principals  or  of  any  of  the  co-sureties  were  proved ; 
"but  that  at  all  events  the  plaintiff  could  not  be  entitled  to  recover  at  law 
more  than  one-sixth  of  the  whole  sum  paid." 

'  S.  C.  I  White  and  Tudor's  Leading  Cases  in  Equity,  pt.  1,  *100,  vriih.  notes. 

^  The  whole  doctrine  of  contribution  between  securities  originated  with 
courts  of  equity.  There  is  no  express  contract  for  contribution ;  the  bonds, 
obligations,  bills,  or  notes,  created  liabilities  from  the  obligors  to  the  obligees. 
The  contribution  between  co-securities  results  from  the  maxim,  that  equality 
is  equity.  Proceeding  on  this,  a  surety  is  entitled  to  every  remedy  which  the 
creditor  has  against  the  principal  debtor;  to  stand  in  the  place  of  the  creditor; 
to  enforce  every  security,  and  all  means  of  payment;  to  have  those  securities 
transferred  to  him,  though  there  was  no  stipulation  for  that.  This  right  of  a 
surety  stands  upon  a  principle  of  natural  justice.  The  creditor  may  resort  to 
principal,  to  either  of  the  securities,  for  the  whole,  or  to  each  for  his  propor- 
tion, and  as  he  has  that  right,  if  he,  from  partiality  to  one  surety,  or  for  other 
cause,  will  not  enforce  it,  the  court  of  equity  gives  the  same  right  to  the 
other  surety,  and  enables  him  to  enforce  it.  Natural  justice  says  that  one 
surety  having  become  so  with  other  sureties,  shall  n.  t  have  the  whole  debt 
thrown  upon  him  by  the  choice  of  the  creditor,  in  not  resorting  to  remedies  in 
his  power,  without  having  contribution  from  those  who  entered  into  the  ob- 


44  COLWELL  v.  EDWAKDS  [part  i.. 

And  Lord  Eldon  Ch.  J.  said,  that  he  had  conversed  with  Lord  Kenyan 
upon  the  subject,  who  was  also  of  opinion  that  no  more  than  an  aliquot 
part  of  the  whole,  regard  being  had  to  the  number  of  co-sureties,  could 
be  recovered  at  law  by  the  defendant ;  though  if  the  insolvency  of  all  the 
other  parties  were  made  out,  a  larger  proxwrtion  might  be  recovered  in 
a  court  of  Equity.' 

ligation  equally  with  him.  The  obligation  of  co-sureties  to  contribute  to  each 
other,  is  not  founded  in  contract  between  them,  but  stood  upon  a  principle  of 
equity,  until  that  principle  of  equity  had  been  so  universally  acknowledged, 
that  courts  of  law,  in  modern  times,  have  assumed  jurisdiction.  This  juris- 
diction of  the  courts  of  common  law  is  based  upon  the  idea,  that  the  equitable 
principle  had  been  so  long  and  so  generally  acknowledged,  and  enforced,  that 
persons,  in  placing  themselves  under  circumstances  to  which  it  applies,  may  be 
supposed  to  act  under  the  dominion  of  contract,  implied  from  the  universality 
of  that  principle.  For  a  great  length  of  time,  equity  exercised  its  jurisdiction 
exclusively  and  undividedly;  the  jurisdiction  assumed  by  the  courts  of  law 
is,  comparatively,  of  very  modern  date;  and  is  attended  with  great  difficulty 
where  there  are  many  sureties;  though  simple  and  easy  enough  where  there 
are  but  two  sureties,  one  of  whom  brings  his  action  against  the  other  upon 
the  implied  assumpsit  for  a  moiety. — Per  Bibb,  C.  J.,  Lansdale's  Administra- 
lors  and  Heirs  v.  Cox   (1828)   7  T.  B.  Mon.  (23  Ky)   401,  403. 

^"1  am  of  opinion  that  the  plaintiff  in  this  case  is  entitled  to  recover  one- 
third  of  the  money  which  he  has  paid  on  account  of  this  annuity.  In  equity, 
indeed,  in  the  case  of  Peter  v.  Eich  1  Cha.  Ca.  34,  where  one  of  three  sureties 
had  paid  a  sum  of  money,  it  was  held,  that  he  was  entitled  to  recover  one 
moiety  from  another  of  the  co-sureties,  the  third  having  become  insolvent ; 
but  I  think,  that  at  law,  one  of  three  co-sureties  can  only  recover  against 
any  one  of  the  others  an  aliquot  proportion  of  the  money  paid,  regard  being  had 
to  the  number  of  sureties."  Per  Bayley,  J.  in  Broicn  v.  Lee  (1827)  G  B.  d  C. 
689,  697. 

"  Again  it  is  an  equitable  principle  of  very  general  application  that  where 
one  person  is  in  the  position  of  a  mere  surety  for  another,  whether  he  be- 
came so  by  actual  contract,  or  by  operation  of  law,  if  he  is  compelled  to  pay 
the  debt  which  tlie  other  in  equity  and  justice  ought  to  have  paid,  he  is  en- 
titled to  relief  against  the  other,  who  was  in  fact  the  principal  debtor.  And, 
when  courts  of  law,  a  long  time  since,  fell  in  love  with  a  part  of  the  jurisdic- 
tion of  chancery,  and  substituted  the  equitable  remedy  of  an  action  of  as- 
sumpsit upon  the  common  money  counts,  for  the  more  dilatory  and  expensive 
proceeding  by  a  bill  in  equity  in  certain  cases,  they  permitted  the  person 
thus  standing  in  the  situation  of  surety,  who  had  been  compelled  to  pay  money 
for  the  principal  del)tor,  to  recover  it  back  again  from  the  person  who  ought 
to  have  i)aid  it,  in  this  equitable  action  of  assumpsit  as  for  money  paid,  hud 
out  and  expended  for  his  URe  and  benefit."  Per  Walworth,  Chancellor,  in 
Hunt  V.  Amnion  (1842)   4  Hill  345,  348. 

"it  has  lonf^  been  settled,  that,  if  there  are  co-sureties  by  the  same  in- 
strument, and  the  creditor  calls  upon  either  of  them  to  pay  the  principal  debt, 
or  any  part  of  it,  that  surety  has  a  right  in  this  Court,  either  upon  a  principle 
(if  cfpiity,  or  upon  contract,  to  call  upon  his  co-surety  for  contribution;  and  I 
tiiink,  that  right  is  properly  enough  stated  as  depending  rather  upon  a  prin- 


CHAP.  II.]     REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.      45 


Section  3.    Auxiliary  Jurisdiction. 


REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO. 

In  the  Supreme  Court  of  New  Hampshire,  1902. 
[71  New  Eampsliire  332.] 

Bill  in  Equity.  The  bill  allep^es  that  the  plaintiff  has  commenced  an 
action  at  law  against  the  defendants  to  recover  damages  for  negligently 
causing  the  death  of  the  plaintiff's  intestate  by  furnishing  him  for  use 
in  his  employment  improper,  unsuitable,  and  dangerous  machinery;  that 
on  April  9,  1899,  while  the  intestate  was  in  the  employ  of  the  defendants, 
he  was  killed  by  falling  against  the  governor  of  an  engine;  that  the 
engine  gave  indications,  by  an  unusual  noise,  that  it  was  in  a  defective 
condition,  and  shortly  afterward  the  strap  on  its  connecting  rod  broke 
and  caused  the  connecting  rod  to  break  through  the  outer  casing  with 
a  loud  crash,  and  thereby  caused  the  intestate's  fatal  fall;  that 
the  broken  pieces  of  the  strap  are  in  the  defendants'  possession;  that 
to  properly  prepare  the  plaintiff's  action  at  law  for  trial  it  is  necessary 
that  these  pieces  should  be  examined  by  the  plaintiif's  attorneys,  and 
also  by  competent  persons,  with  a  view  of  testifying;  and  that  the 
defendants,  though  requested,  have  refused  to  permit  such  examination. 
The  prayer  is  for  a  discovery  of  the  pieces  of  the  broken  strap,  and  for  an 
inspection  of  the  same  by  the  plaintiff's  attorneys  and  such  other  persons 
as  she  may  desire. 

The  defendants  filed  a  demurrer,  which  was  sustained  pro  forma  by 

ciple  of  equity  than  upon  contract:  unless  in  this  sense;  that  the  principle 
of  equity  being  in  its  operation  established,  a  contract  may  be  inferred  upon 
the  implied  knowledge  of  that  principle  by  all  persons,  and  it  must  be  upon 
such  a  ground,  of  implied  assumpsit,  that  in  modern  times  Courts  of  Law 
have  assumed  jiu-isdiction  upon  this  subject:  a  jurisdiction  convenient  enough 
in  a  case  simple  and  uncomplicated :  but  attended  with  great  difficulty,  where 
the  sureties  are  numerous;  especially  since  it  has  been  held,  Coiccll  v.  Edward, 
2  Bos.  d  Pul.,  268,  that  separate  actions  may  be  brought  against  the  different 
sureties  for  their  respective  quotas  and  proportions.  It  is  easy  to  foresee 
the  multiplicity  of  suits  to  which  that  leads."  Per  Lord  Eldon  in  Cray- 
thorne  v.  Sunnburne  (1807)  14  Ves.  160,  164.  See  also,  Deering  v.  Earl  of 
Winchelsca   (1787).     1  Cox  Ch.  318,  321. 


46  KEYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.  [part  i. 

Pike,  J.,  at  the  April  term,  1901,  of  the  superior  court,  subject  to  the 
plaintiff's  exception. 

Crawford  D.  Hening,  for  the  plaintiff. 

Chamherlin  &  Rich  and  Orville  D.  Baker  (of  Maine),  for  the  de- 
fendants. 

Chase,  J,  Wliatever  may  have  been  the  fact  prior  to  1842  (Laws 
1832,  c.  89,  s.  9;  Dover  v.  Purtsmoitth  Bridge,  17  N.  H.  200),  there  can 
be  no  doubt  that  ever  since  that  date  courts  of  this  state  have  possessed 
full  equity  powers  in  respect  to  discovery.  R.  S.,  c.  171,  s.  6;  G.  S., 
c.  190,  s.  1;  G.  L.,  c.  209,  s.  1;  P.  S.,  c.  205,  s.  1.  In  the  grant  of  equity 
powers  by  the  last-named  statute,  which  is  now  in  force,  discovery  is 
specially  mentioned.  The  jurisdiction  of  the  court  over  the  subject 
generally  is  not  questioned,  but  it  is  said  that  this  case  does  not  fall 
within  the  jurisdiction.  In  considering  the  reasons  that  have  been 
offered  in  support  of  this  position,  it  is  necessary  to  have  in  mind  the 
origin,  purpose,  and  general  nature  of  this  remedy. 

"  The  common  law  laid  down  as  a  maxim.  Nemo  tenetur  arraare  ad- 
versarinm  suum  contra  se;  in  furtherance  of  which  principle  it  gen- 
erally allowed  litigant  parties  to  conceal  from  each  other,  up  to  the  time 
of  trial,  the  evidence  on  which  they  meant  to  rely,  and  would  not 
compel  either  of  them  to  supply  the  other  with  any  evidence,  parol  or 
otherwise  to  assist  him  in  the  conduct  of  his  cause."  Best.  Ev.,  s.  624; 
1  Gr.  Ev.,  s.  329.  A  different  rule  grew  up  in  equity.  The  defendant 
there  was  obliged  to  answer  under  oath  the  allegations  of  the  bill,  and 
might  be  compelled  to  produce  for  inspection  by  the  plaintiff  documents 
that  were  in  the  defendant's  possession  and  control  and  were  material 
to  the  issues  involved  in  the  suit.  In  such  cases  the  discovery  was 
incident  to  the  equitable  relief  sought.  But  it  was  not  limited  to  the 
issues  arising  in  suits  in  equity.  "  Many  cases  existed  in  which  the 
plaintiff  had  a  legal  title,  oi*  a  legal  right,  or  was  pursuing  a  legal 
remedy,  but  wherein  no  redress  could  be  actually  obtained,  simply  be- 
cause the  plaintiff's  evidence  either  rested  in  the  breast  of  the  defendant, 
or  consisted,  in  whole  or  in  part,  of  documents  in  the  defendant's  pos- 
session. Hence  there  was  failure  of  justice  at  common  law,  and  hence 
there  arose  the  equitable  remedy  of  bills  for  discovery,  which  was  made 
use  of  simply  for  the  purpose  of  assisting  or  supplementing  the  plain- 
tiff's remedy  at  common  law."  Bisp.  Eq.  (6th  cd.),  s.  557;  2  Sto.  Eq. 
Jur.,  ss.  1484,  1485;  1  Pom.  Eq.  Jur.,  ss.  191,  195.  The  law  expected 
from  the  testimony  which  a  party  might  be  compelled  to  furnish  against 
himself  in  this  way,  testimony  tending  to  convict  him  of  a  violation 
of  the  criminal  law,  or  to  subject  him  to  a  penalty  or  forfeiture;  also 
communications  between  him  and  his  attorney  relating  to  the  matters  in 
suit,  and,  if  a  public  officer,  testimony  a  publication  of  which  would  be 
prejudicial  to  the  community.  With  these  exceptions,  a  party  could  be 
compelled  ''  to  discover  and  set  forth  upon  oath  every  fact  and  circum- 
t^tance  within  his  l<ii(Avlc<lg(',  information,  or  belief,"  and  to  produce  and 


-CHAP.  11.]     REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.      47 

allow  his  adversary  lo  insjiect  and  copy  every  document  in  the  party's 
possession  material  to  the  other's  case.     Ad.  Eq.,  c.  1. 

The  defendants  say  that  this  ease  is  not  within  this  equitable  jurisdic- 
tion, because  the  discovery  and  inspection  sought  is  of  articles  of  per- 
sonal property  belonging  to  them,  in  which  the  plaintiff  has  no  right 
of  property  or  possession.  The  gist  of  the  action  at  law,  in  aid  of  which 
this  suit  was  brought,  is  the  negligence  of  the  defendants  in  furnishing 
the  plaintiff's  intestate,  their  employee,  with  improper,  unsuitable,  and 
dangerous  machinery  for  use  in  his  employment.  It  is  a  necessary  in- 
ference from  the  allegations  of  the  hill  that  the  "  improper,  unsuitable, 
and  dangerous  "  element  in  the  machinery  existed  in  the  strap  on  the 
connecting  rod  of  the  engine.  This  broke  and,  it  is  alleged,  caused  the 
intestate's  death.  The  alleged  unsuitableness  of  the  strap  may  be  due  to 
inadequacy  of  size,  error  in  form,  inperfection  in  construction,  or  in- 
feriority of  the  materials  from  which  it  was  made.  An  inspection  of  the 
fragments  will  evidently  aid  in  determining  whether  there  was  one  or 
more  of  these  defects  in  it,  and  if  so,  which.  As  matters  of  proof,  the 
fragments  would  at  least  be  ancillary  to  other  testimony  on  the  point. 
S  Gr.  Ev.,  ss.  328,  329 ;  Best  Ev.,  s.  200.  They  may  be  the  most  reliable 
iind  weighty  testimony,  one  way  or  the  other.  The  bill  alleges  that  the 
plaintiff  cannot  properly  prepare  her  action  at  law  for  trial  without  an 
inspection  and  examination  of  them.  By  reason  of  the  demurrer,  this 
allegation  must  be  taken  as  true.  Unless  the  equitable  remedy  of  dis- 
covery has  been  superseded  by  the  provision  of  some  plain,  adequate,  and 
complete  remedy  at  law,  or  is  not  applicable  to  a  case  of  tort  like  that 
alleged  in  the  plaintiff's  action  at  law, — ^points  that  are  hereinafter  con- 
sidered,— it  is  certain  that  the  defendants  through  their  officers  and 
agents  might  be  compelled  in  a  suit  like  the  present  one  to  discover 
the  form  in  which  the  strap  was  constructed,  the  character  of  the  work- 
manship by  which  and  the  materials  from  which  it  was  made, — in  short, 
all  the  facts  within  their  knowledge,  information,  or  belief  tending  to 
show  that  it  was  defective.  If  they  had  in  their  possession  a  plan  of 
the  strap  or  of  the  broken  pieces,  they  might  be  compelled  to  produce  it 
for  examination  by  the  plaintiff.  Why,  then,  may  they  not  be  compelled 
to  produce  the  broken  pieces  themselves?  Two  reasons  are  suggested: 
one — positive  and,  if  well  founded,  substantial — that  the  defendants' 
right  to  possess  and  control  the  property,  growing  out  of  their  ownership 
of  it,  cannot  be  infringed  in  this  way;  and  the  other — negative  and  not 
applying  to  the  merits  of  the  question — that  there  is  no  precedent  for  a 
discovery  and  inspection  of  such  property.  It  must  be  admitted  that 
the  defendants'  right  of  property  in  the  broken  strap  will  be  interfered 
with  to  some  extent  if  they  are  required  to  produce  it  and  allow  the 
plaintiff  and  others  to  examine  it.  But  such  interference  will  not  differ 
in  kind  or  degree  from  that  which  occurs  when  a  party  is  required  to 
produce  his  letters,  deeds,  plans,  other  documents,  or  books,  for  inspec- 
tion.    The  rights  of  the  defendants  arising  from  the  ownership  of  the 


48  KEYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.     [part  i. 

strap  are  no  more  sacred  than  would  be  their  rig-hts  arising  from  the 
ownership  of  a  plan  of  the  strap,  if  they  had  one.  The  infringement  of 
property  rights  in  such  cases  is  justified  upon  the  ground  that  it  is  nec- 
essary to  the  administration  of  justice.  Such  necessity  is  alleged  by  the 
plaintiff  and  admitted  by  the  defendants.  It  is  apparent  that  an  ex- 
amination of  the  strap  will  afford  a  better  means  of  ascertaining  the  truth 
in  respect  to  its  suitableness  or  unsuitablencss  for  the  office  it  was 
to  perform  than  any  possible  description  or  plan  of  it  could  afford;  and 
the  necessity  for  an  inspection  of  it  is  correspondingly  greater  than  the 
necessity  for  an  oral  description  or  a  plan. 

The  following  cases  illustrate  the  application  that  has  been  made  of 
the  doctrine  of  discovery  in  aid  of  actions  at  law,  in  respect  to  documents 

and  books:  v.  Corporation  of  Exeter,  2  Ves.  620;  Moodalay  v. 

Morton,  1  Bro.  C.  C.  469;  Burrell  v.  Nicholson,  1  Myl.  &  K.  680;  Storey 
V.  Lennox,  1  Myl.  &  C.  523;  Smith  v.  Beaufort,  1  Hare  507;  Chadwick 
V.  Bowman,  L.  R.  16  Q.  B.  Div.  561;  Peck  v.  Ashley,  12  Met.  478.  The 
documents,  a  discovery  of  which  was  sought  in  these  cases,  were  not 
muniments  of  title,  or  documents  containing  evidence  bearing  upon  an 
accounting  between  the  parties,  but  were  letters,  books,  and  papers  sup- 
posed to  contain  evidence  in  support  of  the  plaintiff's  case  in  actions  at 
law.  Indeed,  no  cases  have  been  found  in  which  it  is  held  that  the  right 
of  discovery  in  respect  to  documents  depends  upon  the  fact  that  the 
documents  are  muniments  of  title  to  property  in  dispute  in  the  action  at 
law,  or  that  they  are  relevant  to  an  accounting  between  the  parties  sought 
in  such  action.  The  right  to  the  discovery  of  documents,  etc.,  is  as  exten- 
sive as  the  right  to  discovery  by  oral  testimony,  and  depends  upon  the 
same  principles. 

Marsden  v.  Panshall,  1  Vern.  407,  decided  in  1686,  is  an  authority  that 
discovery  may  be  had  of  personal  property  other  than  documents,  etc. 
The  plaintiff  in  the  suit,  a  clothier,  entrusted  clothes  to  B  for  sale  in 
London,  and  B  pawned  them  to  the  defendant.  The  defendant  confessed 
that  B  pawned  clothes  to  him,  but  did  not  admit  that  they  were  the 
plaintiff's.  The  report  says:  "Sergeant  Maynard  this  day  moved  for 
the  plaintiff  that  the  defendant  might  be  ordered  to  let  the  plaintiff,  with 
two  or  more  persons  present,  have  a  sight  of  the  clothes  pawned,  *  *  * 
which  was  ordered  accordingly ;  the  meaning  of  which  was,  and  so  it  was 
taken  by  the  court,  that  the  plaintiff  should  thereby  be  enabled  to  bring 
an  action  at  law."  The  defendants  say  that  this  was  not  an  order  com- 
jjclling  inspection  of  the  defendant's  property,  as  the  title  was  alleged 
to  be  in  the  plaintiff,  and  this  was  not  denied.  But  the  title  to  the  clothes 
was  the  fact  to  be  determined  in  the  action  at  law.  It  might  turn  out  that 
they  belonged  to  the  defendant.  Macclesfield  v.  Davis,  ?>  Ves.  &  B.  16,  is 
to  the  same  effect.  These  cases  must  be  regarded  as  authorities  for  the 
plaintiff  in  this  action. 

Occasion  for  the  use  of  the  remedy  for  the  discovery  of  chattels  and 
ffjr  their  insi)ection  has  undoubtedly  arisen  more  frequently  in  patent 


CHAP.  II.]     REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.      49 

cases  than  in  others,  but  the  remedy  itself  has  no  special  features  peculiar 
to  such  cases.  Their  peculiarity  consists  in  the  manner  of  affording 
relief.  "  It  may  be  by  an  interlocutory  injunction  in  the  first  instance. 
But  much  more  frequently,  unless  the  case  is  of  the  strongest  possible 
kind,  it  is  by  merely  putting  the  matter  in  train  for  determination  of  the 
right  at  law,  and  then  at  the  hearing  a  perpetual  injunction  is  granted, 
upon  the  plaintiff  succeeding  in  the  action  at  law."  Patent  Type  Found- 
ing Co.  V.  AYalter,  Johns.  V.  C.  727,  730.  It  should  be  noted  in  this 
connection,  also,  that  the  same  principles  govern  discovery,  whether  it  be 
invoked  in  aid  of  other  issues  involved  in  the  suit  in  equity,  or  be  in- 
voked independently  in  aid  of  an  action  at  law.  Drake  v.  Drake,  3  Hare 
523 ;  Lyell  v.  Kennedy,  8  App.  Gas.  217 ;  Wig.  Dis.  123.  If  discovery  of 
personal  chattels  may  be  had  in  the  former  case,  it  may  be  had  in  the 
latter. 

In  Bovill  V.  Moore,  2  Goop.  G.  G.  56,  Lord  Eldon,  in  1815,  said:  ''  There 
is  no  use  in  this  court  directing  an  action  to  be  brought  if  it  does  not 
possess  the  power  to  have  the  action  properly  tried.  The  plaintiff  has  a 
patent  for  a  machine  used  in  making  bobbin  lace.  The  defendant  is  a 
manufacturer  of  that  article,  and,  as  the  plaintiff  alleges,  he  is  making 
it  with  a  machine  constructed  upon  the  principle  of  the  machine  pro- 
tected by  the  plaintiff's  patent.  Now  the  manufactory  of  the  defendant 
is  carried  on  in  secret.  The  machine  which  the  defendant  uses  to  make 
"bobbin  lace,  and  which  the  plaintiff  alleges  to  be  a  piracy  of  his  invention, 
is  in  the  defendant's  own  possession,  and  no  one  can  have  access  to  it 
without  his  permission.  The  evidence  of  the  piracy  at  present  is  the 
bobbin  lace  made  by  the  defendant.  The  witnesses  say  that  the  lace  must 
have  been  manufactured  by  the  plaintiff's  machine,  or  by  a  machine 
similar  to  it  in  principle.  This  is  obviously  in  a  great  measure  con- 
jecture. No  court  can  be  content  with  evidence  of  this  description. 
There  must  be  an  order  that  the  plaintiff's  witnesses  shall  be  permitted, 
before  the  trial  of  the  action,  to  inspect  the  defendant's  machine  and  to 
see  it  work."  It  is  true,  as  the  defendants  in  this  case  say  in  their  brief, 
that  the  order  was  placed  "  upon  the  general  doctrine  that  without  such 
inspection  the  case  could  not  be  properly  tried."  As  has  been  seen,  the 
remedy  for  discovery  in  aid  of  actions  at  law  was  introduced  for  the 
very  purpose  of  securing  proper  trials  therein.  The  application  of  the 
remedy  to  the  case  was  in  accordance  with  the  general  rule.  An  action 
for  infringing  the  patent  was  brought, — probably  by  direction  of  the 
court  after  compliance  with  this  order, — and  was  tried  by  a  jury.  8.  C, 
2  Marsh.  211.  Browne  v.  Moore,  3  Bli.  178,  was  a  similar  case,  in  which 
the  plaintiff  was  permitted  to  inspect  the  machine  which  he  alleged  in- 
fringed his  patent.  Russell  v.  Cowley,  Web.  Pat.  Gas.  457,  was  a  bill 
for  discovery  as  to  the  defendant's  infringement  of  the  plaintiff's  patent 
right  for  making  irdn  tubing,  and  for  an  accounting.  The  plaintiff's 
counsel  acceded  to  terms  proposed  by  the  other  side  that  an  account 
should  be  kept  and  two  persons  appointed  on  each  side,  as  inspectors  of 


50  EEYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.     [part  l 

the  defendant's  works,  for  the  purpose  of  giving  evidence  at  the  trial  of 
an  action  at  law  to  be  begun  forthwith.  An  order  was  made  accordingly, 
and  an  action  was  thereupon  brought,  at  the  trial  of  which  the  inspectors 
testified,  giving  expert  testimony.  The  defendants  question  the  authority 
of  this  case  on  the  ground  that  the  order  of  inspection  was  made  with 
the  consent  of  the  parties.  Whether  the  consent  was  of  the  nature  which 
the  defendants  infer  it  was,  is  at  least  doubtful.  It  may  have  resulted 
from  a  consciousness  that  the  court  had  power  to  make  the  order  sought, 
and  may  have  been  given  merely  to  expedite  the  proceedings.  The  case 
is  cited  as  a  precedent  for  the  jurisdiction  of  the  court  to  order  an  inspec- 
tion in  such  cases  in  Patent  Type  Founding  Co.  v.  Lloyd,  5  H.  &  N.  192. 
In  Morgan  v.  Seaivard,  Web.  Pat.  Cas.  167,  an  order  for  inspection  of 
paddle-wheels  and  machinery  was  ordered.  Patent  Type  Founding  Co.  v. 
Lloyd  was  an  action  at  law,  in  which  the  plaintiffs  claimed  to  own  a 
patent  for  type,  the  novelty  being  the  use  of  a  large  proportion  of  tin, 
which  made  the  tyjje  hard,  tough,  and  enduring.  They  moved,  under 
15  and  16  Vict.,  c.  83,  s.  42,  for  leave  to  inspect  the  defendant's  type,  and 
if  necessary  to  take  specimens  for  analysis,  in  order  that  they  might  pro- 
duce evidence  of  the  analysis  at  the  trial.  The  court,  being  of  the  opinion 
that  the  statute  did  not  give  them  authority  to  grant  an  order  for  speci- 
mens, denied  the  motion.  5  H.  &  N.  192.  A  few  days  later  the  plaintiffs 
filed  a  bill  in  equity  praying  for  an  injunction  and  for  liberty  to  inspect 
the  type  and  take  samples.  Liberty  was  granted, — the  parties  to  make  the 
inspection  being  named  in  the  order, — and  the  defendant  was  ordered 
to  furnish  not  exceeding  four  ounces  of  type  for  analysis.  Patent  Type 
Founding  Co.  v.  Walter,  (the  defendant  in  one  of  the  two  actions  re- 
ported in  5  H.  &  N.  192),  Johns.  V.  C.  727. 

There  is  also  a  line  of  cases  in  which  an  inspection  of  real  estate  has 
been  ordered.  Lonsdale  v.  Curwen,  3  Bli.  168;  Walker  v.  Fletcher,  3  Bli. 
172;  East  India  Co.  v.  Kynaston,  3  Bli.  153;  Attorney-General  v.  Cham- 
bers, 12  Beav.  159;  Lewis  v.  Marsh,  8  Hare  97.  In  a  note  to  the  first- 
named  ease,  Bligh,  the  reporter,  says :  "  The  practice  in  courts  of  equity 
of  granting  orders  for  inspection  of  mines,  machines,  etc.,  is  well  settled. 
But  no  notice  has  ever  been  taken  of  the  point  in  the  books  of  practice, 
and  no  authorities  are  to  be  found  upon  the  subject  in  the  reports  of  cases 
in  equitj',  except  in  the  case  in  the  court  below  of  Kynaston  v.  East  India 
Co.,  as  reported  3  Swan.  248,  and  upon  appeal  to  the  house  of  lords,  now 
reported  in  the  text,  and  which  case  as  it  relates  to  warehouses  is  distinct 
from  former  authorities  and  new  in  its  kind.  Two  cases  of  orders  for 
inspection  extracted  from  the  register's  book  are  therefore  subjoined," — • 
being  Walker  v.  Fletcher  and  Browne  v.  Moore,  supra, — the  former  pro- 
viding ff)r  an  inspection  of  mines,  and  the  latter,  as  has  already  been 
stated,  for  an  inspection  of  machinery  in  a  case  for  an  infringement  of 
a  patent.  Story,  after  speaking  of  the  defect  in  the  administration  of 
justice  in  courts  of  common  law,  arising  from  their  want  of  power  to 
"  compel   the   production  of  deeds,  books,   writings,   and  other  things " 


CHAP.  II.]     KEYNOLDS  r.  BURGESS  SULPHITE  FIBRE  CO.      51 

material  to  the  issues  on  trial,  says  the  defect  is  "  remediable  in  courts  of 
equity,  which  will  compel  the  production  of  such  books,  deeds,  writings, 
and  other  things."  2  Sto.  Eq.  Jur.,  ss.  14S4,  1485.  See,  also,  1  Pom.  Eq. 
Jur.,  a".  191.  It  would  seem  that  these  authors  had  in  mind  something 
besides  books  and  documents. 

One  reason  suggested  by  the  defendants  why  these  cases  do  not  support 
the  plaintiff's  claim  is  because,  as  they  say,  in  all  of  them  the  plaintiffs 
set  up  an  interest  in  the  property  to  be  inspected.  As  has  been  already 
observed,  it  is  not  perceived  how  this  affects  the  question.  The  inspection 
was  ordered  in  each  case  while  the  interest  was  undetermined,  and  there 
was  no  presumption  that  it  would  be  determined  in  favor  of  the  plaintiffs. 
If  determined  in  favor  of  the  defendants,  the  inspection  would  in  fact  be 
of  their  property^  the  same  as  in  the  cases  cited  in  which  letters  and  other 
documents  were  subjected  to  inspection.  The  defendant  in  East  India 
Co.  V.  Kynaston  had  no  interest  whatever  in  the  warehouse,  for  the  ex- 
amination of  which  he  sought  an  order.  The  facts  of  this  case,  at  least, 
do  not  support  the  defendants'  contention.  It  is  also  to  be  noticed  that 
none  of  the  cases  places  the  right  of  discovery  upon  this  circumstance. 
The  right,  as  in  all  other  cases,  depends  upon  the  necessity  for  discovery 
in  the  administration  of  justice. 

To  warrant  discovery,  it  is  not  necessary  that  there  should  be  absolutely 
no  means  of  proving  the  plaintiff's  case  without  it.  In  Bovill  v.  Moore, 
there  were  witnesses  who  would  say  that  the  lace  made  by  the  defendant 
was  manufactured  by  the  plaintiff's  machine  or  one  constructed  on  the 
same  principle.  The  plaintiff  had  some  evidence  to  sustain  his  case,  but 
it  was  not  satisfactory.  A  party  may  maintain  a  bill  for  discovery, 
"  either  because  he  has  no  proof,  or  because  he  wants  it  in  aid  of  other 
proof."  2  Sto.  Eq.  Jur.,  s.  1483;  Mer.  Eq.,  ss.  853,  854.  "When  the 
plaintiff  has  any  case  to  make  out,  he  has  a  right  to  discovery  of  anything 
that  may  assist  him  in  proving  his  case,  or  even  the  smallest  tittle  of  it." 
Jenkins  v.  Buslihy,  35  L.  J.  Ch.  400. 

The  defendants  cite  three  New  York  cases  in  support  of  their  con- 
tention— Kennedy  v.  Nichols,  68  N.  Y.  Supp.  1053,  Ansen  v.  Tusha,  1 
Rob.  Sr.  Ct.  663,  and  Cooke  v.  Company,  20  Hun.  641.  In  the  first  case 
provisions  of  the  code  and  of  general  rules  of  practice  adopted  under  the 
authority  of  the  code,  relating  to  discovery  upon  a  motion  in  an  action  at 
law,  are  construed,  and  what  is  said  respecting  discovery  is  based  upon 
Ansen  v.  Tusha.  That  was  an  action  at  law  in  which  there  was  a  motion 
under  the  code,  by  the  defendant,  for  the  production  of  the  goods  involved 
in  the  action  and  an  inspection  of  them  by  persons  to  be  selected  by  hi':i 
to  enable  them  to  testify  as  experts.  In  denying  the  motion,  the  court 
refer  to  the  equitable  remedy  of  discovery,  and  say  in  general  terms  that 
there  is  no  authority  or  principle  for  discovery  such  as  was  asked  for  in 
the  case.  There  is  no  discussion  of  the  principles,  and  no  authorities  are 
cited  relating  to  the  matter.  In  Cooke  v.  Company,  the  question  is  dis- 
posed of  without  an  examination  of  authorities.     The  reasons  given  for 


52  EEYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.     [part  i. 

the  holding  are  that  a  discovery  and  inspection  of  the  personal  property 
of  an  adverse  party  would  be  a  ursurpation  of  authority  to  search  and 
inspect  his  private  premises,  and  that  discovery  of  books  and  documents 
is  discretionary  with  the  court,  and  is  exercised  only  where  the  party 
applying  has  some  right  or  interest  in  the  books  and  documents.  While 
the  defendant  may  be  compelled  to  disclose  whether  he  has  the  article 
in  his  possession  and  control,  and  if  he  has  to  produce  it  for  inspection, 
the  procedure  is  not  a  search  in  the  sense  indicated.  It  affords  no  just 
cause  for  the  fear  expressed  by  the  court  that  "  the  dwellings  of  our  citi- 
zens will  be  of  small  security  to  them  if  they  may  be  invaded  by  their 
enemies  and  searched  for  articles  of  personal  property  to  be  inspected 
under  an  order  of  a  court."  Neither  does  the  right  of  discovery  of  books 
and  documents  depend  upon  the  discretion  of  the  court  (Wig.  Dis.  51 ; 
Drake  v.  Drake,  3  Hare  523)  ;  nor  upon  the  parties  having  some  right 
or  interest  in  them  other  than  as  items  of  testimony  in  his  favor.  Wig. 
Dis.  209,  210,  256;  Kerr  Dis.  202;  2  Sto.  Eq.  Jur.,  s.  1490;  1  Pom.  Eq. 
Jur.,  s.  205;  Attorney-General  v.  Thompson,  8  Hare  106;  Arnold  v.  Water 
Co.,  18  R.  I.  189.  The  slight  infringement  of  the  right  of  property  that 
is  involved  in  an  inspection  of  it  under  an  order  of  a  court  of  equity  is 
justified  by  "  due  process  of  law  "  or  "  the  law  of  the  land,"  and  is  in  no 
sense  a  violation  of  the  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable  searches  and  seizures. 

A  consideration  of  the  origin  of  the  equitable  remedy  for  discovery, 
and  of  its  nature  and  purpose,  leads  to  the  conclusion  that  it  may  be  em- 
ployed to  compel  the  production  of  personal  chattels,  as  well  as  books, 
deeds,  letters,  and  other  documents,  for  inspection  and  examination,  in 
aid  of  an  action  at  law ;  and  the  foregoing  cases  confirm  this  conclusion. 

The  defendants'  second  objection  is  because  the  discovery  and  inspec- 
tion are  sought  for  the  purpose  of  having  the  broken  strap  examined  by 
persons  with  a  view  of  enabling  them  to  testify  as  experts  in  the  action  at 
law.  This  objection  must  also  be  overruled.  It  is  evident  that  expert 
testimony  may  be  competent  upon  the  issue  to  be  tried,  whether  it  relate 
to  the  form  of  the  strap,  the  manner  of  its  construction,  or  the  character 
of  the  materials  from  which  it  was  made.  The  defendants  have  ample 
opportunity  to  procure  such  testimony.  Justice  requires  that  the  plain- 
tiff shall  also  have  an  opportunity  to  have  the  strap  examined  by  persons 
in  whose  .^kill  and  scientific  knowledge  she  has  confidence.  There  cannot 
be  a  fair  trial  of  the  case  unless  such  opportunity  is  given  to  the  plain- 
tiff. Indeed,  it  may  be  that  she  cannot  establish  lier  right — if  she  have 
one — without  having  the  opportunity.  The  necessity  for  it  is  alleged,  and 
admitted  by  the  demurrer.  The  object  of  the  plaintiff's  bill  is  the  dis- 
covery of  testimony  for  use  at  the  trial,  but  the  discovery  must  necessarily 
take  place  prior  to  the  trial.  In  Marsden  v.  Panshall,  supra,  the  suit  in 
oquity  was  begun  before  the  action  at  law,  in  order  that  "  the  plaintiff 
should  thereby  be  enabled  to  bring  an  action  at  law."  See,  also,  Bovill  v. 
Moore,  supra;  Heathcote  v.  Flente,  2  Vcrn.  442;  Morse  v.  Buckworih,  2 


CHAP.  II.]     REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO       53 

Vern.  443;  2  Sto.  Ecj.  Jur.,  s.  1495;  1  Pom.  Eq.  Jur.,  s.  197.  In  Russell 
V.  Cowley,  Patent  Type  Founding  Co.  v.  Walter,  supra,  and  apparently  in 
the  other  patent  cases  cited,  the  inspection  was  ordered  to  enable  wit- 
nesses to  give  expert  testimony  at  the  trial  of  the  actions  at  law.  See, 
also,  Burrell  v.  Nicholson,  1  Myl.  &  K.  680;  Arnold  v.  Water  Co.,  18  R. 
I.  189. 

The  defendants  place  much  reliance  upon  their  third  point,  viz.,  that 
the  equitable  remedy  for  discovery  cannot  be  invoked  in  aid  of  an  action 
at  law  for  a  personal  tort.  They  do  not  question,  and  in  view  of  the 
authorities  cannot  question,  the  proposition  that  discovery  may  be  had  in 
aid  of  actions  of  tort  relating  to  property,  such  as  trover,  detinue,  tres- 
pass, waste,  etc.  East  India  Co.  v.  Evans,  1  Vern.  307;  Marsden  v. 
Panshall,  1  Vern.  407;  Heathcote  v.  Fleete,  2  Vern.  442;  Morse  v.  Buck- 
worth,  2  Vern.  443;  Sloane  v.  Hatfield,  Bunb.  IS;  Taylor  v.  Crompton, 
Bunb.  95;  Macclesfield  v.  Davis,  3  Ves.  &  B.  16;  Burrell  v.  Nicholson,  3 
B.  &  Ad.  649,-1  Myl.  &  K.  680.  But  they  say  that  a  defendant  cannot  be 
called  upon  to  implicate  himself  directly  or  indirectly  in  a  personal  tort 
because  it  would  tend  to  show  moral  turpitude,  and  so  is  inconsistent  with 
principles  of  natural  justice.  It  is  true,  as  has  already  been  stated,  that 
a  person  cannot  be  called  upon  to  furnish  testimony  in  aid  of  such  an 
action  or  any  other  which  tends  to  show  that  he  has  committed  a  crime 
or  misdemeanor,  or  that  he  is  liable  to  a  penalty  or  a  forfeiture  of  prop- 
erty. Testimony  of  this  kind  is  excepted  from  the  operation  of  the 
remedy,  in  deference  to  the  fundamental  law  that  no  subject  shall  be 
compelled  to  accuse  or  furnish  evidence  against  himself  in  a  criminal  pro- 
ceeding. It  is  said  also  that  this  equitable  jurisdiction  will  not  be 
exercised  in  controversies  involving  moral  turpitude  and  arising  from 
acts  clearly  immoral,  even  though  brought  for  the  purpose  of  recovering 
pecuniary  compensation.  1  Pom.  Eq.  Jur.,  s.  197;  2  Sto.  Eq.  Jur.,  s. 
1494 ;  Wig.  Dis.  83 ;  and  authorities  cited  in  notes.  Jf  this  be  so,  this  case 
is  not  thereby  excluded  from  the  jurisdiction ;  for,  so  far  as  appears,  it 
does  not  involve  moral  turpitude  or  immoral  conduct  on  the  part  of  the 
defendants.  They  are  charged  with  negligence,  merely,  consisting  of  a 
failure  to  perform  their  implied  contractual  obligation  to  provide  the 
plaintiff  with  suitable  machinery  for  the  performance  of  his  duties,  or  a 
suitable  place  in  which  to  work.  Although  the  action  at  law  is  in  form 
tort,  it  is  in  fact  based  upon  the  failure  to  perform  a  duty  arising  from 
an  implied  promise.  It  is  as  distinguishable  in  this  respect  from  an 
action  of  trespass  to  the  person,  as  an  action  against  a  common  carrier 
for  the  loss  of  goods  in  his  custody  is  distinguishable  from  an  action  for 
setting  fire  to  one's  house.    Morse  v.  Buckvorfh,  2  Vern.  443. 

If  the  case  is  excepted  from  the  equitable  jurisdiction  pertaining  to 
discovery,  it  must  be  for  some  other  reason  than  that  a  discovery  would 
show  moral  turpitude  or  immoral  conduct  on  the  part  of  the  defendants ; 
and  none  has  been  suggested  excepting  an  absence  of  precedents  sup- 
porting the  jurisdiction.     The  plaintiff  cites  and  relies  upon  Macaulay 


54  EEYNOLDS  r.  BUEGESS  SULPHITE  FIBEE  CO.     [part  i. 

V.  Shaclcell,  1  Bli.  N.  S.  96,  as  an  authority  in  her  favor  upon  this  point. 
Macaulay  brought  an  action  at  law  against  Shackell  and  others  for  libel, 
and  the  defendants  pleaded  the  truth  of  the  alleged  libelous  matter,  and 
in  aid  of  their  defence  filed  a  bill  for  discovery  and  a  commission  for 
examining  witnesses  abroad.  Macaulay  filed  a  demurrer  to  the  bill, 
which  was  overruled  by  Lord  Eldon,  Chancellor,  and  Macaulay  appealed 
to  the  house  of  lords,  where  the  judgment  of  the  lord  chancellor  was 
affirmed,  so  far  at  least  as  it  granted  a  commission  for  taking  testimony 
abroad.  There  seems  to  be  a  difference  of  opinion  regarding  the  scope  of 
the  decision,  some  holding  that  it  required  Macaulay  to  answer  the  bill 
and  make  the  discovery  sought,  and  others  that  it  only  granted  a  com- 
mission to  take  testimony  abroad.  See  Eedfield's  note  to  2  Sto.  Eq.  Jur., 
s.  1494.  The  decision  was  rendered  in  1827,  and  Mr.  Shadwell  (pre- 
sumably Sir  Lancelot)  was  senior  counsel  for  Macaulay.  Four  years 
later  the  case  of  Wilmot  v.  Maccahe,  4  Sim.  263,  was  before  Sir  Lancelot 
Shadwell  as  vice-chancellor.  This  was  also  a  bill  for  discovery  in  aid  of 
a  defence  alleging  the  truth  of  the  libelous  matter  with  which  the  party 
was  charged  in  an  action  at  law.  The  vice-chancellor,  referring  to 
Macaulay  v.  Shackell,  said :  "  Lord  Eldon,  and  the  house  of  lords  on 
appeal,  decided  that  where  a  person  brings  an  action  for  a  libel  it  follows, 
as  commensurate  with  the  right  to  bring  the  action,  that  the  party  who 
complains  is  bound  to  give  the  discovery  which  the  defendant  at  law 
claims  to  have  by  his  bill."  The  vice-chancellor  must  have  been  familiar 
with  the  decision  in  the  Macaulay  case;  and  if  the  report  of  the 
case  leaves  a  doubt  regarding  the  decision,  the  statement  of  the  vice- 
chancellor  would  seem  to  be  sufficient  to  remove  the  doubt.  In  an  earlier 
case  of  the  same  kind  (Thorpe  v.  Macauley,  5  Mad.  218)  the  discovery 
sought  was  denied  on  the  ground  that  it  would  show  that  the  party  had 
committed  a  misdemeanor,  but  the  vice-chancellor.  Sir  John  Leach,  used 
the  following  language  in  disposing  of  the  question :  "  It  was  next 
argued  that  a  court  of  equity  would  not  lend  its  aid,  either  for  discovery 
or  commission,  to  either  party  in  an  action  at  law  proceeding  ex  delicto. 
*  *  *  No  such  limitations  of  the  jurisdiction  as  to  discovery  is  hinted 
at  in  any  book  of  practice  or  by  the  dictum  of  any  judge.  Courts  of  equity 
exercise  a  direct  jurisdiction  in  matters  of  waste  and  public  nuisance, 
which  are  ex  delicto.  I  am  not  therefore  prepared  to  say  that  a  court  of 
equity  will  refuse  its  ordinary  aid  to  the  parties  in  any  action  at  law  pro- 
ceeding for  a  civil  remedy."  This  cannot  be  regarded  as  authority  on  the 
point,  but  it  is  worthy  of  notice  in  this  connection.  Chancellor  Walworth 
regarded  these  cases  as  authorities  in  favor  of  the  right  of  discovery  in 
actions  for  libel  unless  the  discovery  would  tend  to  incriminate  the  party 
or  render  him  infamous.  Marsh  v.  Davison,  9  Pai.  Ch.  580,  584,  585,  586. 
A  dictum  of  Lord  Langdale,  Master  of  the  Eolls  (who,  Lord  Campbell, 
in  his  Lives  of  the  Lord  Chancellors,  vol.  12,  /;.  351,  says  "  is  without 
vigor  and  has  not  a  judicial  mind"),  in  Glynn  v.  Houston,  1  Ke.  329, 
decided  in  1836,  has  added  to  the  doubts  regarding  the  decision   in 


CHAP.  II.]     REYNOLDS  v.  BURGESS  SULPHITE  FIBRE  CO.      55 

Macaulay  v.  Shackell.  The  case  was  a  bill  for  the  discovery  of  books 
and  documents  in  aid  of  an  action  at  law  for  an  assault  and  false  im- 
prisonment. The  discovery  was  denied  on  the  ground  that  it  would 
incriminate  the  party  called  on  to  make  it.  The  dictum  referred  to  is  as 
follows :  "  I  have  looked  into  the  authorities,  which  tend  very  much  to 
confirm  my  opinion  that  a  bill  of  discovery  cannot  be  sustained  in  aid  of 
an  action  for  a  mere  personal  tort.  If  it  were  necessary  to  expressly 
decide  this  point,  I  think  it  is  clear  what  the  course  of  my  duty  would  be; 
but  it  is  not  here  necessary,  because  a  bill  of  discovery  cannot  be  sus- 
tained in  any  case  where  the  matter  sought  to  be  discovered  may  be  made 
the  subject  of  a  criminal  charge."  The  defendants  say  that  this  is  a  de- 
cision upon  the  point,  but  it  is  apparent  that  it  is  far  from  being  such. 
If  it  had  been  necessary  to  decide  the  point,  it  is  highly  probable  that 
Macaulay  v.  Shacl-ell  and  Wilmot  v.  Maccahe  would  have  been  noticed 
and  either  distinguished,  overruled,  or  set  right.  There  is  no  distinction 
between  libel  and  assault,  as  personal  torts,  which  would  account  for  a 
difference  in  the  application  of  the  doctrine  of  discovery  to  them.  There 
are  similar  dicta  by  Cockhurn,  C.  J.,  in  Pye  v.  Butterfield,  5  B.  &  S.  829, 
830,  and  by  Lord  Fitzgerald,  in  Lyell  v.  Kennedy,  8  App.  Cas.  217,  233. 

These  dicta  certainly  cannot  be  regarded  as  settling  the  law  on  the 
subject.  Attention  has  not  been  called  to  any  English  case  in  which  they 
have  been  adopted  as  the  law.  The  industry  of  the  counsel  on  both  sides 
in  searching  for  English  and  American  authorities  bearing  upon  the  case, 
manifested  by  the  numerous  citations  which  they  have  made,  justifies  a 
conclusion  that  no  such  case  exists.  Wigram  cites  Glynn  v.  Houston 
three  times,  but  makes  no  mention  of  the  point  in  Lord  Langdale's 
dictum.  Wig.  Dis.  5,  81,  85.  Kerr  says  "  it  seems  "  that  a  bill  for  dis- 
covery will  not  be  entertained  in  aid  of  an  action  for  a  mere  personal  tort, 
citing  Glynn  v.  Houston.  In  the  next  paragraph  he  says :  "  It  is  no 
objection  that  the  discovery  be  sought  in  aid  of  actions  which  sound  in 
tort.  Bills  may  also  be  brought  for  discovery  in  aid  of  or  in  defence  to 
actions  of  trespass  and  trover ;  and,  in  general,  there  seems  to  be  no  civil 
right,  the  trial  of  which  will  not  be  aided  by  a  bill  of  discovery."  Kerr 
Dis.  6,  7.  Evidently  Lord  Langdale's  dictum  did  not  appeal  to  him  as 
having  much  weight. 

One  American  case  has  been  cited  in  which  the  point  was  decided 
in  favor  of  the  defendants'  contention,  Rohinson  v.  Craig,  16  Ala.  50. 
The  decision  was  based  solely  upon  Glynn  v.  Houston  and  the  absence 
of  authorities  the  other  way.  There  was  no  consideration  whatever  of  the 
principles  involved  in  the  question.  If  the  absence  of  authorities  is  en- 
titled to  any  weight,  it  is  under  the  circumstances  very  slight.  Cases 
for  personal  torts  arising  from  the  action  of  the  defendant, — willful  torts, 
so  to  speak, — in  which  the  defendant  could  make  discovery  without  in- 
criminating himself,  must  from  the  nature  of  the  case  be  very  rare.  It 
is  possible  that  there  have  been  none  excepting  Macattlay  v.  Shackell,  and 
cases  of   like  nature  that  have  been   decided   in   accordance   therewith 


56  EEYNOLDS  v.  BUEGESS  SULPHITE  FIBRE  CO.     [part  i. 

without  again  raising  the  question.  Cases  from  negligence  were  not 
common  prior  to  the  middle  of  the  last  century.  The  use  of  steam  and 
electricity,  and  the  commercial  activity  consequent  thereon,  have  im- 
mensely multiplied  cases  of  this  kind.  Lord  Campbell's  act  for  giving 
compensation  to  the  families  of  persons  killed  by  the  negligence  of  others 
was  enacted  in  1846.  Eight  years  later  a  procedure  bill  was  passed, 
largely  through  the  agency  of  Lord  Campbell  (17  &  18  Vict.,  c.  125),  by 
which,  among  other  things,  it  was  provided  that  either  party  to  a  civil 
action  in  the  superior  courts  "  shall  be  at  liberty  to  apply  to  the  court  or 
a  judge  for  a  rule  or  order  for  the  inspection  by  the  jury,  or  by  himself, 
or  by  his  witnesses,  of  any  real  or  personal  property,  the  inspection  of 
which  may  be  material  to  the  proper  determination  of  the  question  in  dis- 
pute." lb.,  s.  58.  In  speaking  of  this  act.  Lord  Campbell  says:  "It 
brings  about,  as  far  as  is  now  practicable,  the  fusion  of  law  and  equity, 
and  establishes  the  principle  on  which  our  jurisprudence  must  henceforth 
be  moulded,  one  court  for  one  cause, — i.  e.,  that  the  court  in  which  the 
suit  commences  shall  carry  it  through  all  its  stages,  and  finally  determine 
it  and  everything  connected  with  it.  Thus  parties  will  no  longer  be  kept 
oscillating  between  law  and  equity  till  the  subject-matter  in  controversy 
is  wasted  in  costs."  Lives  of  the  Lord  Chancellors,  vol.  12,  p.  395.  In 
passing,  it  may  be  remarked  that  if  the  act  and  the  reason  of  its  enact- 
ment do  not  show  that  its  author  understood  that  courts  of  equity  had 
jurisdiction  to  order  an  inspection  of  real  or  personal  property  when 
such  inspection  was  material  to  the  proper  determination  of  an  issue,  it 
certainly  shows  that  he  felt  there  was  a  necessity  for  such  inspection  in 
the  administration  of  justice.  The  act  relieved  parties  from  the  neces- 
sity of  resorting  to  equity  for  discovery,  and  reasonably  accounts  for  the 
absence,  in  England,  of  bills  of  discovery  in  aid  of  actions  at  law  for 
negligence  since  that  time. 

"  Cases  must  arise  from  time  to  time  which  are  new  cases  in  specie, 
but  which  are  not  new  cases  with  respect  to  the  general  principle  by  which 
they  must  be  decided."  1  Bli.  N.  S.  133 ;  Walker  v.  Walker,  63  N.  H.  321 ; 
Boody  V.  Watson,  64  N.  II.  162;  Gage  v.  Gage,  66  N.  II.  282.  If 
Macaulay  v.  ShackeU  and  Wilmot  v.  Maccahe  are  not  authorities  in 
favor  of  the  maintenance  of  the  plaintiff's  bill,  the  general  principles 
governing  the  remedy  of  discovery  certainly  justify  its  maintenance. 
The  case  may  be  a  new  case  in  specie,  so  far  as  discovery  is  concerned, 
but  it  belongs  to  a  class  to  which  the  remedy  of  discovery  is  applicable. 

It  has  been  suggested  that  this  is  a  "  fishing  bill,"  and  should  be  dis- 
missed for  that  reason.  The  plaintiff  is  not  endeavoring  to  ascertain  what 
defence  the  defendants  contem])late  making,  nor  facts  that  exclusively 
relate  to  the  defendants'  case,  but  is  seeking  discovery  of  facts  that  will 
oTiribl''  lirr  to  jirove  her  case.     It  is  not  a  fishing  bill. 

'I'lii>  <liFiii(l;nit.s  further  say  that  the  statutes  of  the  state  removing  the 
disability  of  parties  as  witnesses  d*.  S.,  c.  224,  s.  13),  autliorizing  the 
taking  of  depositions  before  trial  (P.  S.,  c.  225),  and  giving  the  court 


CHAP.  II.]     REYNOLDS  i;.  BURGESS  SULPHITE  FIBRE  CO.      57 

authority  to  order  a  view  at  the  trial  (P.  S.,  c.  227,  s.  19),  furnish  a  full, 
complete,  and  adequate  remedy  at  law  for  obtaining  the  testimony  which 
the  plaintiff  seeks,  and  so  ousts  the  court  of  its  equitable  jurisdiction. 
If  these  statutes  have  such  effect  in  cases  where  the  testimony  sought  may 
be  obtained  under  them,  which  is  doubtful  ( Wheeler  v.  Wadleigh,  37  N. 
H.  55;  Howell  v.  Ashmore,  1  Stock.  82;  Shotwell  v.  Smith,  20  N.  J.  Eq. 
79;  Union  etc.  R'y  v.  Baltimore,  71  Md.  238;  Russell  v.  Dickeschied,  24 
W.  Va.  61,  68;  Lovell  v.  Galloway,  17  Beav.  1;  1  Sto.  Eq.  Jur.,  s.  64),  it 
does  not  appear  that  the  plaintiff  could  obtain  by  virtue  of  them  an  in- 
spection of  the  broken  strap  prior  to  the  trial.  The  size  and  character 
of  the  strap  are  not  stated,  but  it  is  reasonably  certain  that  a  subpoena 
duces  tecum  would  be  powerless  to  cause  its  production  at  the  taking  of 
depositions.  A  view  of  it  at  the  trial  would  not  answer  the  requirements 
of  justice,  according  to  the  allegations  of  the  bill. 

The  demurrer  should  be  overruled. 

Exception  sustained. 

All  concurred. 


58  BURGESS  v.  WHEATE  [part  i. 


CHAPTER  III. 

GROUNDS  FOR  EQUITY  JURISDICTION. 

Section  1.    No  Legal  Right  or  Remedy. 


BURGESS  V.  WHEATE. 

In  Chancery,  1759. 

[1  Eden  177.]  ' 

By  indenture  bearing  date  the  11th  of  January  1718,  (there  being  no 
issue  of  the  marriage),  made  between  Nicholas  Harding  and  Elizaheth 
his  wife,  of  the  one  part,  and  Sir  Francis  Page  and  Robert  Simmons  of 
the  other  part,  reciting  the  settlement  of  the  16th  of  August  1695,  and 
covenanting  to  levy  a  fine  to  assure  the  premises  to  the  use  of  the  daugh- 
ters of  the  marriage,  as  tenants  in  common;  and,  in  default  of  such  issue, 
to  Page  and  Simmons,  and  their  heirs,  in  trust  for  the  said  Elizaheth 
Harding,  her  heirs  and  assigns,  to  the  intent  that  she  might  at  any  time 
during  her  life,  without  her  husband's  concurrence,  dispose  of  the  rever- 
sion of  the  moiety  aforesaid  to  such  uses,  &c.,  as  she  should  by  her  will, 
or  other  writing,  appoint,  and  for  no  other  use,  intent,  or  purpose  what- 
soever.   A  fine  was  accordingly  levied. 

There  was  no  daughter  of  the  marriage;  Mrs.  Harding  survived  her 
husband  without  making  any  appointment,  and  without  heirs  on  the  part 
of  the  father,  from  whence  the  land  descended.  But  Burgess,  the  plain- 
tiff, was  her  heir  on  the  part  of  the  mother. 

On  the  death  of  Mrs.  Harding,  Sir  Francis  Page,  the  surviving  trustee, 
got  into  possession ;  and  in  July  1739,  the  bill  in  the  first  cause  was  filed 
against  him  by  Burgess,  and,  on  Sir  Francis's  death,  it  was  revived 
against  his  personal  and  real  representatives.  It  prayed  that,  if  there  was 
any  legal  interest  in  Sir  Francis  Page,  he  might  be  compelled  to  convey 
to  plaintiff,  deliver  up  possession,  and  account  for  the  rents  and  profits. 
The  answer  insisted  that  he  was  lawfully  seised  of  the  inheritance  of 
the  estate,  and  entitled  to  the  rents  and  profits. 

On  the  14th  of  Jidy  1741,  the  cause  came  on  to  be  heard  before  Lord 
Hardirirke,   C,   who,   on    the   pleadings    being   opened,   objected   to    the 

'  Only  a  piirt  of  the  statement  of  facts  is  given. 


CHAP.  III.]  BURGESS  V.  WIIEATE  59 

Attorney-General's  not  being  a  party.  Both  parties  were  desirous  that 
there  should  be  no  question  about  the  escheat,  and  the  Attorney-General 
did  not  insist  upon  it.  But  the  Lord  Chancellor  asking  him  if  he  waived 
any  right  the  crown  might  have,  and  would  consent  that  it  might  be  so 
entered,  the  cause  stood  over,  and  the  Attorney-General  was  made  a  party. 
It  coming  on  again  before  Lord  Hardwicke  on  the  11th  of  February  1744, 
a  case  was  directed  to  be  made  for  the  opinion  of  the  court  of  King's 
Bench,  with  the  three  following  questions. 

First,  Whether,  by  virtue  of  the  indenture  of  the  11th  of  Janvary  1718, 
and  the  fine  therein  mentioned,  any  and  what  estate  in  law  did  pass  to 
Page  and  Simmons,  or  either  of  them  ? 

Second,  In  case  no  estate  passed  to  Page  and  Simmons,  or  either  of 
them,  by  virtue  of  that  indenture  and  fine,  whether  the  inheritance  of  the 
premises,  or  any  part  thereof,  did,  on  the  death  of  Elizabeth  Harding, 
descend  to  Burgess  as  heir  at  law  on  the  part  of  the  mother  ? 

Third,  In  case  the  said  deed  of  the  11th  of  January  1718  had  not  been 
executed,  or  the  fine  levied,  but  the  same  were  entirely  out  of  the  case, 
whether  the  inheritance  of  the  said  premises,  or  any  part  thereof,  would 
have  descended  to  the  said  Richard  Burgess  as  heir  at  law  on  the  part  of 
the  mother?  And  the  consideration  of  costs  and  further  directions  was 
reserved  till  the  opinion  of  the  judges  should  be  certified. 

Lord  Mansfield,  C.  J.^ 

On  the  ground  of  the  case  on  the  certificate,  the  whole  turns  on  the 
effect  and  operation  of  the  deed  of  1718  in  a  court  of  equity. 

The  first  question  that  arose  was  between  the  heir  and  the  trustee  only. 
Sir  F.  Page  entered  1738,  and  July,  1739,  Burgess,  as  heir  of  Elizabeth 
Harding,  brought  his  original  bill  against  the  trustee.  On  the  14th  of 
July,  1741,  the  cause  came  on  to  be  heard.  On  the  pleadings  being 
opened,  and  the  nature  of  the  question  appearing.  Lord  Chancellor  him- 
self objected  to  the  Attorney-General's  not  being  a  party  in  respect  of  the 
king's  right  by  escheat.  Both  parties  were  extremely  desirous  that  there 
should  be  no  question  upon  the  escheat,  and  the  Attorney-General  did  not 
insist  upon  it ;  but  the  Chancellor  asking  him  if  he  waived  any  right  the 
crown  might  have,  and  would  consent  it  might  be  so  entered,  the  cause 
stood  over.  The  Attorney-General  was  then  made  a  party,  and  the  in- 
formation was  filed  on  behalf  of  the  crown. 

There  are  three  competitors  before  the  court.  Two  claiming  as  plain- 
tiffs, and  praying  relief;  the  third  a  defendant,  objecting  to  any  relief. 
The  heir  on  the  part  of  the  mother  claims  by  an  alteration  having  been 
made  in  the  deed  of  1718,  in  this  court  as  well  as  at  law.     And,  had  the 

*  Of  the  great  Lord  Mansfield,  as  he  was  called  in  his  lifetime,  Lord  Eldon 
said:  "A  very  eminent  judge  ♦  ♦  *  who  would  be  remembered  as  long  as  the 
law  of  England  or  Scotland  exists"  (FeofTees  of  Heriot's  Hospital  (1814)  2 
Dow,  306,  311)  ;  "Tha>t  doctrine  was  founded  on  the  opinion  of  one  of  the 
greatest  judges  that  ever  sat  in  Westminster  Hall,  Lord  Mansfield"  (Wcst- 
mcath  v.  Wcstmeath  (1830)   2  Doic  d-  CI.  543). 


60  BURGESS  v.  WHEATE  [part  k 

trustee  conveyed  to  Mrs.  Harding  after  the  husband's  death  (the  only- 
purposes  for  which  the  trust  was  created  being  then  ended),  the  heir,  on 
the  part  of  the  mother,  had  undoubtedly  been  entitled. 

The  king  claims,  as  the  deed  of  1718  is  a  conveyance  only  of  legal  form^ 
and  has  in  this  court  made  no  alteration  in  the  beneficial  estate ;  but  haa 
left  it  to  go  in  this  court  as  it  would  have  gone  before  at  law,  as  if  the 
deed  of  1718  had  never  been  made. 

The  trustee  objects  to  the  heir's  claim,  because  he  says  the  deed  of  1718 
has  made  no  alteration  as  to  the  beneficial  estate  of  which  Mrs.  Harding 
died  seised  ex  parte  paterna,  and  opposes  the  king's  right  because  it 
has  changed  the  right  of  escheat,  both  at  law  and  in  equity;  and  upon  a 
general  objection  that  the  plaintiffs  must  recover  upon  their  own  strength 
to  entitle  them  to  relief:  for  it  is  not  enough  for  the  plaintiffs  to  shew 
that  the  defendant  has  no  right,  but  that  they  have  a  better,  upon 
equitable  grounds;  and,  in  the  case  of  a  trupt,  must  shew  a  better  right 
within  the  terms  of  the  creation  of  the  trusts. 

It  seems  agreed  in  this  case,  that  the  heir  ex  parte  materna  cannot  in- 
herit the  trust  because  the  trust  ensues  the  nature  of  the  land;  which,, 
before  the  deed  of  1718,  could  not  have  descended  in  the  maternal  line; 
and  I  am  at  present  of  that  opinion.  The  doubtful  question  is,  whether 
the  king  is  entitled  to  this  trust  ?  And  that  will  depend  upon  arguments 
drawn  from  the  nature  and  effect  of  a  conveyance  in  trust,  and  from  the 
nature  of  the  right  of  escheat. 

I  will  follow  the  method  which  was  used  at  the  bar  under  the  four 
following  heads.  First,  the  nature  of  trusts  of  land,  and  the  rules 
which  govern  them.  Secondly,  the  nature  of  that  right,  by  which  the 
king  claims  in  the  present  case.  Thirdly,  whether,  if  the  trustee  had  died 
sans  heir,  the  king  must  not,  in  that  case,  have  taken  the  land  in  a 
court  of  equity,  subject  to  the  trust.  Fourthly,  I  shall  apply  the  result  of 
this  inquiry  as  between  the  king  and  the  trustee,  to  the  particular  point 
immediately  in  judgment. 

First,  As  to  the  nature  of  trusts  of  land,  and  the  rules  by  which  they 
are  governed.  By  an  in(]uiry  into  the  nature  of  a  use  or  trust  of  land,  no 
more  is  or  can  be  meant,  than,  as  to  uses,  to  find  out  historically,  on  what 
principles  courts  of  equity,  before  27  H.  8.,  received  jurisdiction,  in 
modifying  or  giving  relief  in  rights  or  interests  in  lands,  which  could  not 
be  come  at  but  by  suing  a  subpoena;  as  to  trusts,  what  the  court  does  in 
modifying,  directing,  and  giving  relief  in  the  said  rights  and  interests. 
in  cases  where  there  is  no  remedy,  but  by  bill  in  a  court  of  equity.^ 

Trusts  in  England,  under  the  name  of  uses,  began,  as  they  did  in  Rome, 
under  no  other  security  than  the  trustee's  faith.^    They  were  founded  in 

'  Only  so  nuK-h  of  Lord  INlansfield's  opinion  is  given  as  relates  to  the  history 
and  general  natme  of  a  trust  estate. 

^  "Xota,  An  use  is  a  trust  or  onnfidcnoe  reposed  in  some  other,  which  is  not 
issuing?  out  of  tlie  land,  hut  as  a  thing  oollaterall,  annexed  in  privitie  to  the 
estate   of    the   hmd,   ;iiid    to   thi'   jxTSdH   loucliiiig   llic   land,   scilicet,   that   ccsfy 


CHAP.  III.]  BUEGESS  V.  WITEATE  01 

fraud  to  avoid  the  statute  of  mortmain.  Lord  Bacon  thinks  them  little 
known  before  Richard  the  Second's  time.' 

Though  the  first  hint  of  uses  was  probably  to  avoid  the  mortmain  act, 
yet  they  were  innocently  applied  soon  after  to  other  purposes.  A  benefit 
to  issue  out  of  lands  could  only  be  made  by  the  interposition  of  uses : 
wills  of  land  could  only  be  made  that  way. 

Natural  justice  said,  he  who  breaks  his  trust  does  wrong;  so  cestui/ 
que  use  was  driven  into  Chancery  by  breach  of  faith.  There  were  not 
six  cases  of  uses  before  Edward  the  4th's  time.     The  court  first  inter- 

^ue  use  shall  take  the  profit,  and  that  the  terre-tenant  shall  make  an  estate 
according  to  his  directions.  So  as  cesly  que  use  had  neither  jus  in  re,  nor  jus 
<id  rem,  but  only  a  confidence  and  trust,  for  which  he  had  no  remedy  by  the 
common  law,  but  for  breach  of  trust  his  remedie  was  only  by  subpwna  in 
chancerie." — Co.  Lit.  272  b. 

"  A  trust  is  where  there  is  such  a  confidence  between  the  parties,  that  no 
action  at  law  will  lie,  but  is  merely  a  case  for  the  consideration  of  this  court." 
Per  Lord  Hardwicke  in  Sturt  v.  Mellish   (1743)    2  Atk.  GIO,  612. 

"  A  trust  is  merely  what  a  use  was  before  the  statute  of  uses.  It  is  an  in- 
terest resting  in  conscience  and  equity,  and  the  same  rules  apply  to  trusts 
in  chancery  now  which  were  formerly  applied  to  uses."  Per  Kent  in  Fisher  v. 
Fields   (1812)    10  Johns.  495.  50G. 

"It  is  necessary  to  take  notice  of  the  different  interests  in  land  at  this  day. 
There  are  three  kinds:  First,  the  estate  in  the  land  itself;  the  ancient  com- 
mon law  fee.  Secondly,  the  use ;  which  was  originally  a  creature  of  equity, 
but  since  the  statute  of  uses,  it  draws  the  estate  in  the  land  to  it;  so  that 
they  are  joined  and  make  one  legal  estate.  Thirdly,  the  trust;  which  the  com- 
mon law  takes  no  notice  of,  but  which  carries  the  beneficial  interests  and 
profits  in  this  court;  and  it  is  still  a  creature  of  equity,  as  the  use  was  be- 
fore the  statute." — Per  Lord  Hardicicke  in  Willet  v.  Sandford  (1748) 
1  Ves.  186. 

"Under  this  practice  a  very  refined  system  grew  up.  The  legal  estate  was  in 
•one  person  and  the  use  and  enjoyment  in  another.  There  were  two  titles  and 
•estates  in  the  same  land, — that  of  the  feoffee,  who  was  the  legal  owner,  and 
yet  had  nothing,  and  that  of  the  cestui  que  use,  who  had  the  whole  beneficial 
right  and  interest,  and  yet  had  no  legal  right  or  title.  He  had  nevertheless 
a  substantial  interest  and  estate  which  he  could  convey,  devise,  and  other- 
wise deal  with,  as  with  tangible  property.  Great  inconvenience  arose  from 
this  double  system."     Perry  on  Trusts,  Yol.  1,  §   4. 

^  "Thei-e  were  two  inventors  of  uses,  fear  and  fraud:  fear  in  times  of 
troubles  and  civil  wars,  to  save  their  inheritances  from  being  forfeited ;  and 
fraud,  to  defeat  due  debts,  lawful  actions,  wards,  escheats,  mortmains,  etc." — 
Coke  in  Chudleigh's  Case  (1589-1595)  1  Pep.  120  a.  b.  To  this  statement  Mr. 
Thomas  wrote  the  following  editorial  note:  "Some  have  thought  that  uses  were 
introduced  during  the  contests  between  the  houses  of  York  and  Lancaster,  to 
avoid  forfeitures,  see  Lloyd  v.  Spillet,  2  Atk.  150;  but  the  more  general 
opinion  is,  that  they  were  known  at  a  much  earlier  period,  see  Brent's  Case,  2 
Leon.  14.  Bro.  N.  C.  60.  March.  N.  C.  128.  22  Vin.  Abr.  179.  pi.  2.  n.— .  1. 
Sand  6,  14." 

As  to  the  time  of  their  introduction,   Harper,  J.,  in  Brent's  Case    (1583), 


62  BURGESS  v.  WHEATE  [part  u 

posed  on  very  narrow  grounds:  so  far  as  a  personal  confidence  was 
placed  in  the  trustee,  they  decreed  him  to  perform  the  trust ;  but  the  heir 
of  trustee  or  grantee  was  not  liable.  Keilw.  49.  Subpoena  lay  only 
against  trustee  himself  till  Hen.  6.,  and  then  Fortescue  changed  it.  22 
Ed.  4.  fol.  6.  pi.  18.  This  was  against  the  heir,  but  upon  a  reason  which 
equally  holds  with  respect  to  the  grantee.  The  Chancellor  afterwards 
extended  his  remedy,  unless  the  alienee  purchased  for  valuable  con- 
sideration without  notice. 

Great  inconveniences  arose  from  so  narrow  and  contracted  a  system : 
that  the  cestuy  que  use  should  enjoy  and  dispose,  and  yet  not  be  owner 
to  all  purposes;  and  that  the  feoffee,  who  really  had  nothing,  should  be 
deemed  owner  so  as  to  convey  estates  out  of  his  seisin  by  legal  conveyance 
not  subject  to  the  trust.  Bacon  s  Use  of  the  Law  sums  it  up  very  em- 
phatically in  these  words :  "  By  this  course  of  putting  lands  into  use 
there  were  many  inconveniences;  as  this  use,  which  grew  first  from  a  rea- 
sonable cause,  namely,  to  give  men  power  and  liberty  to  dispose  of  their 
own,  was  turned  to  deceive  many  of  their  just  and  reasonable  rights :  as, 
namely,  a  man  that  had  cause  to  sue  for  his  land,  knew  not  against  whom 
to  bring  his  action,  nor  who  was  owner  of  it.  The  wife  was  defrauded 
of  her  thirds,  the  husband  of  being  tenant  by  curtesy,  the  lord  of  his 
lordship,  relief,  heriot,  and  escheat;  the  creditor  of  his  extent  for  debt; 
the  poor  tenant  of  his  lease:  for  these  rights  and  duties  were  given  by 
law  from  him  that  was  owner  of  the  land,  and  none  other,  which  was  now 
the  feoffee  of  the  trust." 

*  *  *  Trusts  long  fluctuated  in  great  uncertainty,  4  Inst.  85.  In 
43  Eliz.  a  trust  was  decreed  in  Chancery  to  be  a  mere  right  of  action, 
and  therefore  not  assignable.  In  James  the  First's  time  (Ahington's 
case)  all  the  judges  held,  the  trust  of  a  freehold  estate  was  not  forfeitable 

supra,  said:  "Uses  began  about  18  E.  2  [1325]  after  which  time  there  was 
such  a  general  liking  of  them,  that  they  were  anew  used,  but  they  did  not 
come  into  common  practice  before  the  time  of  King  Henry  the  Sixth"  [1422- 
14(il].  In  the  same  case,  Dyer,  C.  J.,  said:  "As  to  the  beginning  of  uses  he 
conceived  that  the  same  was  immediately  after  the  Statute  of  Mortmain, 
at  which  time  all  their  shifts  then  in  practice  were  found  out:  which  see, 
tlie  Statute  of  Mortmain,  7  E.  1,  [1279],  Stat,  de  RcUgiosis ;  for  which 
cause  they  were  afterwards  driven  to  find  out  otlier  shifts  not  provided  for 
by  the  statute,  which  were  espyed  by  the  making  of  the  Statute  of  15  R.  2. 
cap.  5  [l.'i!)2],  and  in  that  statute  these  words,  Belioof  and  Use  are  used; 
whicli  is  the  first  place  these  words  have  been  used  in  our  law." 

.•\h  to  the  origin  of  uses,  it  has  been  customary  to  consider  them  derived 
more  or  less  directly  from  the  Roman  Law:  Spence,  Jurisdiction  of  the  Court 
of  Chancery,  Part  II,  Book  .3,  c.  2;  Story,  Equity  Jurisprudence  (13th  ed.)  F.. 
//,  ]>.  2C)H;  I'omrroy,  Et/uity  Jurisprudence  §  151;  Perry  on  Trusts  §  3;  but  a 
hitcr  view  regards  their  source  as  the  early  German  law.  See,  Early  Eng- 
lish Equity,  hy  Mr.  Justice  Holmes,  in  1  Lain  Q.  Rev.  1C2;  The  Origin  of 
Vsrs,  hy  Mr.  F.  W.  Mnitlnvd,  8  liar.  Law  h'ev.  127;  and  2  Pollock  and 
M'lillnvirs  llif<tnry  nf  Ihr  English  Lair,  226,  227. 


CHAP.  III.]  BURGESS  V.  WHEATE  63 

for  treason;  they  must  therefore  consider  it  as  a  mere  cJiose  in  action. 
2  Roll.  Abr.  C.  pi.  1.  f.  780.  Trustee  of  a  term  for  years  is  attainted 
of  treason ;  the  term  is  forfeit  to  the  king  free  of  the  trust,  because  the 
king  comes  in  the  post,  and  cannot  be  seised  of  an  use. 

In  my  opinion,  trusts  were  not  on  a  true  foundation  till  Lord  Notting- 
ham held  the  great  seal.  By  steadily  pursuing,  from  plain  principles, 
trusts  in  all  their  consequences,  and  by  some  assistance  from  the  legis- 
lature, a  noble,  rational,  and  uniform  system  of  law  has  been  since  raised. 
Trusts  are  made  to  answer  the  exigencies  of  families,  and  all  purposes, 
without  producing  one  inconvenience,  fraud,  or  private  mischief,  which 
the  statute  of  //.  8.  meant  to  avoid. 

The  forum  where  they  are  adjudged  is  the  only  difference  between 
trusts  and  legal  estates.  Trusts  are  here  considered  as  between  cestuy 
que  trust  and  trustee  (and  all  claiming  by,  through,  or  under  them,  or 
in  consequence  of  their  estates),  as  the  ownership  or  legal  estate,  except 
when  it  can  be  pleaded  in  bar  of  the  exercise  of  this  right  of  jurisdiction. 
Whatever  would  be  the  rule  of  law,  if  it  was  a  legal  estate,  is  applied  in 
equity  to  a  trust  estate.  The  statute  of  frauds  speaks  of  devices  only  of 
lands  and  tenements;  yet  the  trust  being  considered  in  this  court  as  the 
land  and  tenement,  can  only  be  devised,  as  lands  and  tenements  may, 
pursuant  to  that  statute.  How  different  is  it  from  an  use !  That  is 
neither  land  nor  tenement.  This  act  gives  sanction  to  trusts  divided 
from  the  estate,  and  guards  thoTU  from  the  danger  of  patrol  proof. 

Twenty  years  ago  1  imbibed  this  principle,  that  the  trust  is  the  estate 
at  law  in  this  court,  and  governed  by  the  same  rules  in  general,  as  all  real 
property  is,  by  imitation.  Every  thing  I  have  heard,  read,  or  thought 
of  since,  has  confirmed  that  principle  in  my  mind. 

In  Banks  v.  Sutton,  Sir  Joseph  JeTcyll  boggled  at  imitating  the 
legal  right  (which  depends  upon  an  actual  seisin  during  the  coverture), 
and  of  applying  it  to  an  equity  of  redemption.  In  the  eye  of  this  court 
Lord  Hardwicke  thought  the  equity  of  redemption  is  the  fee  simple 
of  the  land.  It  will  descend,  may  be  granted,  devised,  entailed,  and  that 
equitable  entail  be  barred  by  a  common  recovery.  This  proves  it  is  con- 
sidered as  such  an  estate,  whereof,  in  consideration  of  this  court,  there 
may  be  a  seisin ;  for,  without  such  a  seisin,  a  devise  could  not  be  good 
of  a  trust.  He  who  has  the  equity  of  redemption  is  considered  as  the 
owner  of  the  land.  He  says  it  is  a  settled  right  in  equity  which  a  man 
cannot  come  at  but  by  suhpoena;  that  the  husband  and  wife,  being  in  per- 
ception of  the  rents  and  profits  during  the  coverture,  were  seised  of  a 
freehold  by  imitation  of  the  law.  The  allowing  tenacy  per  curtesy  of  a 
trust  is  founded  on  the  maxim,  that  equity  follows  the  law,  which  is  a 
safe  as  well  as  fixed  principle ;  for  it  makes  the  substantial  rules  of  prop- 
erty certain  and  uniform,  be  the  mode  of  following  it  what  it  will. 

So  that,  I  take  it,  by  the  great  authority  of  this  determination,  on  clear 
law  and  reason,  cestuy  que  trust  is  actually  and  absolutely  seised  of  the 
freehold  in  consideration  of  this  court ;  and,  therefore,  that  the  legal 


64  MEGOD'S  CASE  [part  i. 

consequences  of  an  actual  seisin  of  a  freehold,  shall,  in  this  court,  follow 
for  the  benefit  of  one  in  the  post. 

To  conclude  this  head.  An  use  or  trust  heretofore  was  (while  it  was 
an  use),  understood  to  be  merely  as  an  agreement,  by  which  the  trustee, 
and  all  claiming  from  him  in  privity,  were  personally  liable  to  the  cestuy 
que  trust,  and  all  claiming  under  him  in  like  privity.  Nobody  in  the  post 
was  entitled  under  or  bound  by  the  agreement.  But  now  the  trust  in  this 
court  is  the  same  as  the  land,  and  the  trustee  is  considered  merely  as  an 
instrument  of  conveyance,  therefore  is  in  no  event  to  take  a  benefit;  and 
the  trust  must  be  co-extensive  with  the  legal  estate  of  the  land,  and 
where  it  is  not  declared,  it  results  by  necessary  implication ;  because  the 
trustee  is  excluded,  except  where  the  trust  is  barred  in  the  case  of  a 
purchaser  for  valuable  consideration  without  notice. 

The  trustee  can  transmit  no  benefit ;  his  duty  is  to  hold  for  the  benefit 
of  all  who  would  have  been  entitled,  if  the  limitation  had  not  been  by 
way  of  trust.  There  is  no  distinction  now  between  those  in  per  and  post, 
except  in  that  case  of  dower  which  is  founded,  not  upon  reason,  but 
practice. 

As  the  trust  is  the  land  in  this  court,  so  the  declaration  of  the  trust  is 
the  disposition  of  the  land.  Therefore  an  essential  omission  in  the  legal 
disposition  shall  not  destroy  the  trust.  As  where  trustee  dies  before 
testator,  or  is  incapable,  upon  the  old  notion  of  an  agreement,  a  subpoena 
could  not  lie  against  the  heir,  where  the  legal  limitation  was  void,* 


MEGOD'S  CASE. 

In  the  King's  Bench,  1587-88. 
[GodhoU  64.] 

The  Case  was,  That  a  Feoffment  was  made  unto  another  man,  ad 
earn  intentionem,  that  he  should  convey  the  same  to  such  a  one,  to  whom 
he  sold  it;  and  ho  sold  the  same  to  another,  and  did  refuse  to  convey  it, 
and  therefore  the  other  brought  an  Action  upon  the  Case.  And  Gaudy 
Justice  held,  that  the  Action  would  lie.    But  Suit  Justice  held  the  con- 

'  Lord  Mansfiold  ooncliulpd  that  "tlio  heir  ex  parte  materna  was  not  en- 
titled; that  from  the  analog}'  between  trusts  and  legal  estates,  the  crown  was 
entitled  by  escheat;  but  that,  if  the  conveyance  had  barred  the  crown  of  its 
right,  as  between  the  maternal  heir  and  the  trustee,  the  former  was  entitled." 

I5ut  the  Lord  Keeper,  and  with  him  the  majority  of  the  court,  held,  "that 
the  maternal  iuir  was  not  entitled;  that,  there  being  a  terre-tenant,  the 
crown,  claiming  by  escheat,  had  not  a  title  by  subpoena  to  compel  a  convey- 
ance from  the  trustee,  the  trust  being  absolutely  determined;  no  opinion 
being  given  upon  the  right  of  the  trustee." 


CHAP.  III.]  ALLEN  V.  IMLETT  65 

trary.  Wray  Chief e  Justice  did  agree  with  Gaudy:  for  he  said,  it  was 
a  Trust,  that  he  should  assure  it  to  another.  And  it  is  a  good  considera- 
tion in  the  Chancery:  the  conveyance  of  a  Trust,  and  thereupon,  an 
Action  upon  the  Case  will  lie.' 


ALLEN  V.  IMLETT. 
Nisi  Prius,  1817. 
[1  F.  L.  Holt  641.] 


This  was  an  action  of  money  had  and  received.  The  bankrupt,  Prior, 
before  his  marriage,  by  a  regular  deed  of  settlement  between  himself  on 
the  one  part,  his  intended  wife  on  the  second  part,  and  the  defendants, 
as  trustees,  on  the  third  part,  had  settled  some  stock  in  the  four  per  cents. 
(and  had  warranted  to  settle  400/.,  being  the  amount  of  a  bill  of  exchange, 
not  at  that  time  due,)  in  trust  for  Ayin  Bridgen,  whom  he  was  about  to 
marry,  until  marriage;  after  marriage,  to  the  use  of  Prior  himself,  during 
his  life;  and  upon  his  death  to  his  wife,  &c.  The  stock,  being  vested  in 
the  name  of  the  trustees,  was  received  by  Prior,  before  his  bankruptcy, 
under  a  power  of  attorney  from  them.  Since  his  bankruptcy,  the  trustees 
had  executed  a  power  of  attorney  to  another  person  to  receive  it;  and  had 
paid  it  into  a  banker's,  for  the  use  of  Mr.  and  ]\[rs.  Prior.  The  action 
was  brought  to  recover  the  sum  of  80/.  8s.  4(7.,  being  the  amount  of  three 
half  yearly  dividends. 

Copley,  Serjeant,  for  the  plaintiffs,  contended,  that  if  the  defendants 
had  not  received  the  money,  this  action  could  not  have  been  maintained; 
but,  having  received  it,  and  paid  it  over  wrongfully,  they  had  no  protec- 
tion from  their  character  as  trustees.  These  dividends  were  the  property 
of  the  bankrupt  before  his  bankruptcy,  and  now  became  the  property  of 
the  assignees.  The  trustees,  therefore,  were  answerable  at  law  for  dis- 
posing of  moneys  which  the  bankruptcy  had  vested  in  the  plaintiffs. 

Blossett,  Serjeant. — Defendants  are  trustees ;  and  no  action  lies  against 

The  case  has  been  severely  criticised  (see  the  Reporter's  note  at  the  end  of 
the  case)  but  it  appears  to  be  the  Law.  1  Lcicin  on  Trusts,  12;  Perry  on 
Trusts,  §8. 

For  a  collection  of  authorities  on  the  point  of  law  involved,  see  Professor 
Ames'  note  to  the  principal  case  in  his  Cases  on  Trusts,  p.  360. 

^  "If  feoffees  to  an  use  at  common  law  refuse  to  make  a  feoffment,  join  in 
voucher,  &e.,  an  action  upon  the  case  does  not  lie,  for  they  shall  be  com- 
pelled in  chancery.     1  li'ol.  108  I.  35,  45."      1  Cotnyn's  Dig.  172,  B.  8. 

"^Yith  regard  to  the  other  point  made,  that  a  breach  of  trust  may  not  be 
the  groimd  of  an  assuiiipsit,  there  is  not  an  abridgment  in  the  law  which 
does  not  contradict  such  a  proposition."  Per  Duller,  J.,  in  Smith  v.  Jameson 
(1794)   5  T.  R.  601,  603. 


66  GRIGBY  v.  COX  [part  k 

them  for  an  abuse  of  their  trust  at  common  law.  If  there  be  any  redress, 
it  must  be  through  the  medium  of  a  court  of  equity.  Prior  himself,  the 
cestui  que  trust,  could  not  sue  his  trustees:  neither  could  his  assignees,, 
who  derive  through  him. 

Dallas,  J. — I  am  decidedly  of  opinion  that  this  action  cannot  be  main- 
tained. It  is  purely  a  case  for  a  court  of  equity.  I  will  nonsuit  the 
plaintifi,  and  give  him  leave  to  move  to  set  it  aside.' 


GRIGBY  V.  COX. 

In  Chancery^  before  Lord  Hardwicke,  1750. 

[1    Yesey,  Senior  517.] 

On  the  marriage  of  defendant  and  his  wife,  an  estate  was  settled  in 
trustees  to  receive  the  rents  and  profits  for  her  sole  and  separate  use,  and 
as  she  should  direct  and  appoint,  whether  sole  or  covert.  The  wife  by 
deeds  of  appointment  sells  part  to  the  plaintiff;  and  the  husband  cove- 
nants, that  the  said  purchase  should  be  free  from  incumbrances;  but  the 
trustees  were  not  consulted  therein. 

The  bill  was  to  have  the  effect  of  this  bargain ;  and  praying,  that  plain- 
tiff may  be  decreed  to  receive  the  rents  and  profits  of  this  part  of  the- 
estate  free  from  the  deduction  of  the  mother's  dower. 

The  wife  insisted,  that  plaintiff  had  colluded  with  her  husband   to 

'  It  is  said  that  Lord  Hobart  held  "that  cestui  que  trust  in  an  action  on  the 
ease  against  his  trustee  shall  recover  for  a  breach  of  trust  in  damages."  Per 
Lord  Chancellor  Jeffries  in  Jevon  v.  Bush  (1C85)  1  Vern.  342;  see  also  Earl 
of  Kildare  v.  ^ir  Morrice  Eustace   (1686)   ib.  419. 

''  When  the  action  of  trespass  on  the  case  came  into  use  as  a  means  of  en- 
forcing equitable  demands,  an  attempt  was  made  to  induce  the  courts  of  law 
to  entertain  an  action  on  the  case  for  damages  against  trustees  of  real  and 
personal  estate  who  neglected  or  refused  to  perform  their  trusts.  Lord 
Chief  Justice  Hobart  appears  to  have  considered  that  such  an  action  might  be 
maintained,  but  as  the  jurisdiction  of  tlie  Court  of  Chancery  for  enforcing 
the  actual  performance  of  trusts,  wliicli  was  tlie  true  and  effectual  relief  re- 
quired in  such  cases,  and  which  a  Clourt  of  Law  could  not  give,  was  estab- 
lished, it  was  considered  fit  that  the  Courts  of  Law  should  not  interfere  in 
sucii  cases,  but  leave  thorn  to  the  Courts  of  Equity.  Lord  Chief  Justice  North 
in  an  argument  in  the  Exchequer  Chamber,  expressly  laid  down  that  no  action 
on  the  case  would  lie  for  a  breach  of  trust  of  the  description  we  have  been  con- 
sidering; the  reason  which  he  gave  was  that  tlie  principal  thing,  viz.  the  trust, 
did  not  belong  to  the  Common  Law  but  to  the  Court  of  Chancery." — Spence, 
Jurisdiction  of  the  Court  of  Chancery  .')76. 

As  to  the  manner  in  which  equity  deals  with  such  a  breach  of  trust,  see 
Shepherd  v.  Mouls   (1R45)    4  llarc  500. 


niAi'.  III.]  BUTLEE  v.  BUCKINGHAM  67 

take  away  that  separate  power  from  her:  that  plaintiff  paid  the  money  to 
her  husband,  though  he  saw  this  settlement  to  her  separate  use ;  therefore 
did  not  come  into  equity  unexceptionably  and  on  fair  grounds;  and  that 
her  friends  and  trustees  ought  to  have  been  consulted. 

Lord  Chancellor. 

Whatever  suspicion  or  inclination  the  court  has  against  such  a  trans- 
action, yet  as  defendant  has  brought  this  case  without  any  proof;  it  is 
impossible  not  to  decree  to  plaintiff  the  purchase  of  this  equity  and  trust, 
the  benefit  of  this  purchase  as  against  the  wife  so  far  as  purchased  from 
her,  and  as  against  the  husband  so  far  as  he  has  bound  himself  by  his  own 
contract.  For  the  rule  of  the  court  is,  that  where  any  thing  is  settled 
to  the  wife's  separate  use,  she  is  considered  as  a  feme  sole ;  may  appoint 
in  what  manner  she  pleases:  and  unless  the  joining  of  her  trustees  with 
her  is  made  necessary,  there  is  no  occasion  for  that.  And  this  will  hold, 
though  the  act  done  by  the  wife  is  in  some  degree  a  transaction  alone  with 
the  husband;  although  in  that  case  a  court  of  equity  will  have  more 
jealousy  over  it:  and  therefore  if  there  is  any  proof  that  the  husband 
had  any  improper  influence  over  the  wife  in  it  by  ill,  or  even  extraor- 
dinary good  usage,  to  induce  her  to  it,  the  court  might  set  it  aside;  but 
not  without  that.  The  wife  might  have  made  an  immediate  appointment 
for  benefit  of  her  husband:  which  would  have  stood,  unless  some  such 
proof  as  before  mentioned.  Then  it  certainly  cannot  be  an  objection 
against  a  purchaser;  and  if  the  case  is  free  from  other  objections,  as 
from  the  defect  of  proof  it  is,  the  taking  the  husband's  covenant  can  be 
no  objection.  A  prudent  man  acting  very  fairly  and  honestly,  and  con- 
sulting the  trustees,  might  have  reasonably  insisted  on  a  covenant  from 
the  husband,  that  the  estate  was  free  from  incumbrances:  for  suppose, 
the  wife  had  made  a  prior  secret  appointment,  how  could  a  purchaser  be 
secured  without  a  covenant  of  the  husband  ?  for  the  covenant  of  the  wife 
could  not  have  bound  her,  as  the  prior  appointment  would  take  place.  A 
court  of  equity  cannot  say,  this  is  wrong,  unless  some  proof  appears 
of  ill  usage  or  distress  by  the  husband.  I  should  then  have  great  difficulty 
in  carrying  this  agreement  into  execution,  or  establishing  this  purchase; 
but  as  it  is  without  proof,  it  is  impossible  to  say  this  is  not  a  purchase.^ 


In  Butler  v.  Buckingham  (1813),  5  Day  492,  497.— Ingersoll,  J. 
said:  It  is  very  clear  to  my  mind,  that  the  contract  of  the  respondent, 
to  convey  her  right  of  dower,  as  set  forth  in  the  petition,  is  absolutely 

'  The  balance  of  the  opinion,  relating  to  dower  rights,  is  omitted. 

Lord  Thurlow  in  Hulnie  v.  Tenant  (1778)  1  Bro.  C.  C.  16,  17,  said:  "Grigby 
V.  Cox,  1  Ves.  517,  appears  to  be  a  decree  for  specific  performance.  The  de- 
fect of  that  case  is  that  it  does  not  state  the  trust.  It  is  said  that  a  feme 
covert  is  to  be  considered  as  a  feme  sole,  with  respect  to  every  authority  she 
can  exercise  over  her  separate  estate;   but  it  is  different  where  the  consent 


68  METH.  EPIS.  CH.  v.  JAQUES  [part.  i. 

void,  and  that  no  relief  against  a  woman,  in  a  case  circumstanced  as  this 
is,  has  ever  been  given.  True,  it  is  laid  down  by  elementary  writers,  and 
authorities  are  quoted  to  justify  the  position,  that  as  to  the  separate 
estate  of  a  feme  covert,  she  is,  by  the  court  of  chancery  in  Great  Britain, 
considered  as  a  feme  sole;  and  that  this  court  will  carry  into  execution 
her  contracts  with  respect  to  such  estate.  To  this  position,  I  subscribe; 
but  when  I  do  it,  I  must  explain  the  principle  on  which  the  court  of  chan- 
cery proceeds  in  such  cases,  and  show  the  kind  of  estate  it  operates  upon, 
as  well  as  the  mode  in  which  relief  is  given. 

This  estate  is  not  all  the  real  estate  belonging  to  the  feme  covert,  nor  is 
it  her  right  of  dower  in  the  real  estate  of  her  husband ;  but  is  such  estate 
only,  be  it  real  or  personal,  as  is  settled  on  her,  for  her  separate  use, 
without  any  control  over  it,  on  the  part  of  her  husband.  As  to  this 
kind  of  estate,  the  court  of  chancery,  to  certain  purposes,  considers  her  as 
a  feme  sole;  and  her  contracts  relative  to  it,  if  made  in  a  particular 
manner,  are  binding. 


Methodist  Episcopal  Church  v.  Jaques  (1817),  3  Johns.  Ch.  77,  90. 
Chancellor  Kent. — It  may  not  be  amiss  to  examine  the  adjudged  cases, 
in  respect  to  this  power  of  disposition  in  the  wife  over  her  separate 
property  settled  to  her  separate  use.  There  is  instruction  to  be  gathered 
on  the  march,  though  the  path  be  dreary.'     .     .     . 

I  apprehend,  we  may  conclude,  (though  I  certainly  do  it  with  un- 
feigned diffidence,  considering  how  great  talents  and  'learning,  by  a 
succession  of  distinguished  men,  have  been  exhausted  on  the  subject,) 
that  the  English  decisions  are  so  floating  and  contradictory,  as  to  leave 
us  the  liberty  of  adopting  the  true  principle  of  these  settlements.  In- 
stead of  holding  that  the  wife  is  a  feme  sole,  to  all  intents  and  purposes, 
as  to  her  separate  property,  she  ought  only  to  be  deemed  a  feme  sole, 
stih  modo,  or  to  the  extent  of  the  power  clearly  given  by  the  settlement. 
Instead  of  maintaining  that  she  has  an  absolute  power  of  disposition, 
unless  specially  restrained  by  the  instrument,  the  converse  of  the  propo- 
sition would  be  more  correct,  that  she  has  no  power  but  what  is  specially 
given,  and  to  be  exercised  only  in  the  mode  prescribed,  if  any  such 
there  be.  Tier  incapacity  is  general;  and  the  exception  is  to  be  taken 
strictly,  and  to  be  shown  in  every  case,  because  it  is  against  the  general 
policy  and  immemorial  doctrine  of  law.  These  very  settlements  are 
iiitc-iidcd  io  ])rotc'ct  her  woaknoss  against  her  husband's  power,  and  her 

of  the  trustees  is  made  essential  to  the  eonveynnoe,  althniiph  the  mere  appoint- 
ment of  trustees  is  not  sufficient  to  deprive  her  of  that  authority ;  for  there 
must  be  trustees,  otherwise  she  eould  have  no  separate  property." 

'The  Chaneellor  here  went  into  an  exhaustive  and  learned  discussion  and 
review  of  the  English  cases  on  the  subject. 


CHAP.  III.]  METII.  EPIS.  CII.  V.  JAQUES  69 

maintenance  against  his  dissipation.  It  is  a  protection  which  this  court 
allows  her  to  assume,  or  her  friends  to  give,  and  it  ought  not  to  be 
rendered  illusory. 

The  doctrine  runs  through  all  the  cases,  that  the  intention  of  the 
settlement  is  to  govern,  and  that  it  must  be  collected  from  the  terms  of 
the  instrument.  When  it  says  she  may  appoint  by  will,  it  does  not  mean 
that  she  may  likewise  appoint  by  deed;  when  it  permits  her  to  appoint 
by  deed,  it  cannot  mean,  that  giving  a  bond,  or  note,  or  a  parol  promise, 
without  reference  to  the  property,  or  making  a  parol  gift,  is  such  an 
appointment.  So,  when  it  says  that  she  is  to  receive  from  her  trustee 
the  income  of  her  property,  as  it,  from  time  to  time,  may  grow  due,  it 
does  not  mean  that  she  may,  by  anticipation,  dispose  at  once  of  all  that 
income.  Such  a  latitude  of  construction  is  not  only  unauthorized  by 
the  terms,  but  it  defeats  the  policy  of  the  settlement,  by  withdrawing 
from  the  wife  the  protection  it  intended  to  give  her.  Perhaps,  we  may 
say,  that  if  the  instrument  be  silent  as  to  the  mode  of  exercising  the 
power  of  appointment  or  disposition,  it  intended  to  leave  it  at  large,  to 
the  discretion  and  necessities  of  the  wife,  and  this  is  the  most  that  can 
be  inferred. 

There  being,  in  the  present  case,  a  clear  mode  of  appointment  pre- 
scribed, it  would  be  unjust,  and  contrary  to  the  settlement,  to  allow  the 
defendant,  who  was  a  party  to  the  instrument,  to  set  up  any  parol  con- 
fession or  agreement  of  the  wife,  as  a  title  to  her  property;  the  exception 
is  consequently  overruled. 

Exception  overruled.' 

^  See  to  the  same  effect,  the  elaborate  opinion  of  Chancellor  Desaussure  in 
Ewing  v.  Synith  (1811)  3  Des.  417.  See  also  Albany  Fire  Insurance  Co.  v. 
Bay  (1850)   4  .V.  Y.  1. 

The  principal  case  was  overruled  in  Jaques  v.  Methodist  Episcopal  Church 
(1820)  17  Johns.  548,  the  Court  of  Errors  holding  that  the  wife  might  freely 
dispose  of  her  separate  estate  unless  limited  to  a  particular  mode  of  disposi- 
tion by  the  words  of  the  instrument. 

In  a  letter  written  to  William  Johnson  in  April  1820,  Chancellor  Kent  says: 
"But,  to  tell  you  the  truth,  I  am  discouraged  and  heartbroken.  The  judges 
have  prevailed  on  the  Court  of  Errors  to  reverse  all  my  best  decisions.  They 
have  reversed  Frost  v.  Beekman  [18  Johns.  544],  the  Methodist  Epis- 
copal Church  V.  Jaques  [supra],  Anderson  v.  Roberts  [18  Johns.  515] 
and  others.  After  such  devastation,  what  courage  ought  I  to  have  to  study 
and  write  elaborate  opinions?  There  are  but  two  sides  to  every  case,  and  1  am 
so  unfortunate  as  always  to  take  the  wrong  side.  I  never  felt  more  dis- 
gusted with  the  judges  in  all  my  life,  and  I  expressed  myself  to  Judge  Piatt 
in  a  way  to  mortify  and  offend  him.  According  to  my  present  feelings  and 
sentiments,  1  will  never  consent  to  publisli  another  opinion,  and  I  have  taken 
and  removed  out  of  sight  and  out  of  my  office  into  another  room  my  three 
volumes  of  Chancery  Reports.  They  were  too  fearful  when  standing  before 
my  eyes." — Kent's  Memoirs  and  Letters  of  Chancellor  Kent. 


70  GARSON  V.  GREEN  [part  i. 

GARSON  V.  GREEK 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1814. 

[1  Johnson's  Chancery  308.] 

The  bill  stated  that  the  plaintiff  sold  to  James  Green,  now  deceased, 
intestate,  in  his  lifetime,  the  one  undivided  third  part  of  a  house  and  lot 
of  ground,  of  which  the  intestate  was  seised  of  two  undivided  third 
parts  in  fee;  and  for  which  he  was  to  pay  the  plaintiff  700  dollars,  200 
dollars  in  cash,  and  the  residue  in  55  days,  for  which  he  was  to  give  his 
promissory  note;  that  on  the  2d  of  Decemher,  1807,  the  plaintiff  ex- 
ecuted and  delivered  a  deed  to  the  intestate,  for  the  plaintiff's  undividerl 
third  of  the  premises,  and  the  intestate  paid  him  the  200  dollars,  and 
gave  him  a  promissory  note,  dated  the  12th  of  December,  1807,  for  500 
dollars,  payable  in  55  days  after  date.  Before  the  note  became  due  the 
intestate  died,  leaving  Margaret  Green,  defendant,  his  widow,  who  took 
out  letters  of  administration  on  his  estate,  and  the  other  defendants,  his 
heirs  at  law. 

The  administratrix  having  refused  to  pay  the  note,  the  plaintiff 
brought  an  action  at  law  against  her,  to  which  she  pleaded  plene  ad- 
ministravit ;  and  the  plaintiff  being  unable  to  prove  assets  in  her  hands, 
took  judgment  for  assets  in  future,  to  the  amount  of  535  dollars  and  19 
cents,  and  the  costs  of  suit.  The  plaintiff  alleged  that  the  intestate  died 
seised  of  the  house  and  lot  above  mentioned,  and  other  real  estate  in 
Neiv-Yorh,  and  left  considerable  personal  estate,  which  came  into  the 
hands  of  the  administratrix. 

The  bill,  as  to  the  administratrix,  was,  under  the  order  of  the  court, 
taken  pro  confesso.  The  other  defendants,  by  their  guardian,  answered, 
and  admitted  the  sale  by  the  plaintiff  to  their  father,  the  intestate,  and 
that  he  owed  to  the  plaintiff  the  amount  of  the  note,  but  whether  it  was 
for  part  of  the  consideration  money  for  the  house  and  lot  they  were 
ignorant. 

The  material  allegations  in  the  bill  were  proved  by  the  witnesses. 

The  Chancellor.  It  is  very  evident  from  the  proof,  that  the  note 
Avas  given  in  part  payment  of  the  consideration  for  the  sale,  by  the 
plaintiff,  of  his  undivided  third  part  of  tlie  house  and  lot  mentioned  in 
the  pleadings;  and  there  is  no  evidence  that  the  vendor  did  not  mean  to 
trust  to  the  estate  sold,  as  a  pledge  for  his  money.  It  is  a  well-settled 
rule,  (i\  Ves.  483,  759,  700.  1  Schoale  &  Lefroy,  132.  1  Bro.  420. 
Surjden,  ch.  12.  p.  352,)  that  the  vendor  has  a  lien  on  the  estate  for  the 
purchase  money,  while  the  estate  is  in  the  hands  of  the  vendee,  and 
when  there  is  no  contract  that  the  lien,  by  implication,  was  not  intended 
to  be  reserved.  Prima  facie  the  purchase  money  is  a  lien  on  the  land, 
and  it  lies  on  the  purchaser  to  show  that  the  vendor  agreed  to  rest  on 
other  security.    The  d(>ath  of  the  vendee  does  not  alter  the  claim;  for,  as 


CHAP.  III.]  MACKRETir  v.  SYMMONS  71 

Lord  Redesdale  observed,  in  a  like  case,  (Hughes  v.  Kearney,  1  Schoale 
&  Lefroy,  132,)  "  the  heir  cannot  be  permitted  to  hold  what  his  an- 
cestor unconscientiously  obtained;  and  is  not  a  thing  unconscientiously 
■obtained  when  the  consideration  is  not  paid  ?"  Taking  a  note  for  the 
purchase  money  does  not  affect  the  vendor's  lien,  and  if  part  be  paid, 
the  lien  is  good  as  to  the  residue,  and  the  vendee  becomes  a  trustee  as 
to  that  which  is  unpaid.  {BlacTchnrn  v.  Gregson,  1  Bro.  420.)  The 
failure  of  the  personal  estate  is  sufficiently  shown  in  the  first  instance; 
and  there  is  nothing  to  gainsay  it,  and  I  shall,  accordingly,  decree  a 
sale   of   the   one  third   of   the   house   and   lot,   towards   satisfaction    of 

^^^  "°*^-  Decree  accordingly.' 


Mackretii  v.  Symmons  (1808)  15  Ves.,  Jr.  329,  336.=— T/ip  Lord 
Chaxcellor  [Ei.don].  Upon  the  special  circumstances  of  this  case,  T 
shall  postpone  my  judgment :  but  I  shall  be  very  unwilling  to  leave  some 
of  the  doctrine,  that  has  been  brought  into  controversy,  with  so  much 
doubt  upon  it,  as  would  be  the  consequence  of  deferring  the  judgment 
without  taking  some  notice  of  it.  The  settled  doctrine,  notwithstanding 
the  case  of  Fawell  v.  Heelis  (Amh.  724.  1  Bro.  C.  C.  3d  edit.  422,  note. 
2  Dick.  425.)  is,  that  unless  there  are  circumstances,  such  as  we 
have  been  reasoning  upon,  where  the  vendor  conveys,  without  more, 
though  the  consideration  is  upon  the  face  of  the  instrument  expressed 
to  be  paid,  and  by  a  receipt,  endorsed  upon  the  back,  if  it  is  the  simple 
case  of  a  conveyance,  the  money,  or  part  of  it,  not  being  paid,  as  be- 
tween the  vendor  and  the  vendee,  and  persons,  claiming  as  volunteers, 
upon  the  doctrine  of  this  Court,  which,  when  it  is  settled,  has  the  effect 
of  contract,  though  perhaps  no  actual  contract  has  taken  place,  a  lien 
shall  prevail ;  in  the  one  case  for  the  whole  consideration ;  in  the  other 
for  that  part  of  the  money  which  was  not  paid.  I  take  that  to  have  been 
the  settled  doctrine  at  the  time  of  the  decision  of  BJachhurn  v.  Greyson 
(1  Bro.  C.  C.  420.);  which  case  so  far  shook  the  authority  of  Fawell  v. 
Heelis  as  to  relieve  me  from  any  apprehension,  that  Lord  Bathurst's 
doctrine  can  be  considered  as  affording  the  rule,  to  be  applied  as  between 
the  vendor  and  vendee  themselves,  and  persons  claiming  under  them. 

There  is  a  case.  Smith  v.  Hihhard,  (2  Dick.  730.)  reported  nowhere 
but  in  Dickens,  which  seems  to  decide  this  point.  There  is  also  another 
case,  besides  those  which  have  been  mentioned,  showing  the  opinion  of 
Lord  Hardwicke,  that  the  lien  prevails:  Harrison  v.  Southcote :  (2  Ves. 
389.  See  393.)  the  case  of  a  Papist  vendor,  for  whom,  Lord  Hardwicke 
says,  the  lien  would  not  be  raised ;  as  that  would  be  giving  an  interest 
in  land  to  a  Papist :  the  specialty  of  that  proving,  that  the  lien  prevails 
in  general  cases.  In  the  case  of  Elliot  v.  Edwards,  (3  Bos.  &  Pid.  181. 
See    183.)      Lord    Alvanley    was    very    strong    upon    it.      There    was 

^  See,  for  a  collection-  of  authorities,  Mr.  Waterman's  to  Warner  r.  Van 
AlstjTie    (1832)    2  Paige  Ch.  514. 

^  S.  C.  I  White  and  Tudoi-'s  Leading  Cases  in  Equity  *289,  with  notes. 


72  MACIvKETH  v.  SYMMONS  [part  i. 

a  covenant  for  pajTiient  of  the  money  upon  the  first  purchase;  and 
also  an  undertaking  by  a  surety:  strong  circumstances  to  show,  that,  as 
between  the  vendor  and  vendee,  there  is  no  intention  to  rely  upon  the 
lien.  The  point  was  not  decided  in  that  case:  but  Lord  Alvanley  lays 
down  the  doctrine  as  I  have  stated  it ;  that  even  in  the  hands  of  another 
person,  with  notice,  the  lien  remains.  In  Gibbons  v.  Baddall  (2  Eq.  Ca. 
Ah.  632.)  the  lien  was  held  to  be  clear  against  a  second  purchaser,  with 
notice.  There  is  a  very  old  case  in  Can/,  {Ream  v.  Botelers,  Cary,  25.) 
which  I  have  cited  as  one  of  this  class :  but  I  have  some  doubt,  whether 
it  is  not  a  case  of  equitable  interposition  upon  another  ground.  The 
circumstances,  leading  me  to  that  doubt  is,  that  there  was  a  lost  bond; 
and  as  the  modern  doctrine  of  dispensing  with  profert  was  not  at  that 
time  known.  The  Lord  Chancellor  might,  therefore,  consider  himself 
as  having  jurisdiction  in  that  case  to  direct  payment  of  the  money,  due 
upon  that  bond,  out  of  the  estate. 

In  Austen  v.  Halsey  (6  Ves.  475.  See  483.)  what  I  stated  upon  this 
subject  was  not  said  without  much  consideration.  I  had  not  at  that 
time,  nor  have  I  now,  the  least  doubt,  that  it  is  the  doctrine.  I  have  some 
doubt  upon  another  point :  taking  the  vendor  to  have  the  lien,  whether  the 
Court  will,  in  case  of  the  death  of  the  vendee,  marshal  the  assets;  so  as  to 
throw  the  lien  upon  the  purchased  estate.  It  has  often  been  said,  and 
the  case  of  Coppin  v.  Coppin  (2  P.  Will.  291.  Sel  ca  ch.  28.)  stated  as  an 
authority,  that  the  Court  will  not  do  that.  The  Lord  Chancellor  in  his 
judgment  takes  no  notice  of  that  point.  In  that  case  the  vendor  hap- 
pened to  be  the  heir  of  the  vendee;  so  that  the  estate  was  at  home;  and  it 
was  held,  that  being  also  the  executor,  he  was  entitled  to  retain  the 
purchase-money  out  of  the  personal  assets.  That  decision  requires  a 
good  deal  of  consideration.  If  the  estate  had  been  in  a  third  person, 
the  general  doctrine  as  to  a  person  having  two  funds  to  resort  to  might 
be  thought  to  have  an  immediate  application ;  and  the  express  terms  of 
the  decree  in  Pollexfen  v.  Moore  (3  Atk.  272.)  might  be  found  very  in- 
consistent with  it. 

It  is  not,  however,  necessary  to  decide  that  point;  as  this  is  an  equity 
that  in  ordinary  cases  will  affect  a  purchaser.  LTpon  principle,  without 
authority,  I  cannot  doubt  that.  It  goes  upon  this;  that  a  person,  having 
got  the  estate  of  another,  shall  not,  as  between  them,  keep  it,  and  not  pay 
the  consideration;  and  there  is  no  doubt,  that  a  third  person,  having 
full  knowledge  that  the  other  got  the  estate  without  payment,  cannot 
maintain,  that  though  a  Court  of  Equity  will  not  permit  him  to  keep  it, 
he  may  give  it  to  another  person,  without  payment.  It  is  not,  however, 
necessary  to  discuss  that  upon  general  principles;  as  it  has  been  repeat- 
edly stated  by  authorities,  that  ought  at  this  time  to  bind  upon  that 
point." 

'  I'lii  an  iulmiriihlc  discussion  of  the  principle  supposed  to  underlie  the 
doctrine  of  the  Vendors  lien  and  for  a  collection  of  authorities,  see  Ahrend  v. 
Odiurnc  (1875)   118  Mass.  2G1  per  Gray,  J. 


CHAP.  III.]  WICKMAN  v.  ROBINSON  73 

WICKMAN  V.  ROBINSON. 

In  the  Supreme  Court  ok  Wisconsin,  1861. 

[14  Wisco7isin  493.]  ' 

Apjteal  from  the  circuit  court  for  Dane  county.  The  complaint  alleged 
that  the  defendant  Robinson  agreed,  in  writing,  under  seal,  to  convey 
to  the  plaintiff  a  tract  of  land  in  return  for  certain  work  to  be  per- 
formed by  the  latter  during  a  period  of  five  years;  that  the  amount 
agreed  to  be  paid  for  said  services  was  five  hundred  dollars;  that  after 
the  plaintiff  had  worked  under  the  contract  two  years  and  a  half, 
Robinson  refused  to  permit  him  to  proceed  further  under  the  agree- 
ment; that  the  value  of  the  services  performed  was  three  hundred 
dollars;  that  Robinson  had,  after  the  recording  of  the  agreement,  con- 
veyed to  the  defendant  McBride  the  forty  acres  of  land  which  he  had 
agreed  to  convey  to  the  plaintiff,  and  had  become  insolvent ;  and  that 
the  plaintiff  had  never  consented  to  a  rescission  of  the  contract,  and 
would  not  consent  to  it  until  his  claim  should  be  paid.  The  complaint 
prayed  that  the  sum  of  three  hundred  dollars,  with  interest,  might  be 
declared  a  lien  upon  said  tract  of  land,  and  that  it  be  decreed  to  be  sold 
for  its  payment.  The  defendants  demurred  to  the  complaint,  on  the 
ground  that  it  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action,  and  the  circuit  court  sustained  the  demurrer.  Other  facts  are 
stated  in  the  opinion. 

By  Court,  Paine,  J.  This  appeal  presents  the  question  whether  one 
who  has  made  a  contract  for  the  purchase  of  real  estate,  and  has  paid 
part  of  the  purchase-money,  has  an  equitable  lien  on  the  land  for  the 
amount  paid,  in  case  a  completion  of  the  contract  is  prevented  by  the 
default  or  wrongful  act  of  the  vendor.  It  must  be  conceded  that  there 
are  not  many  cases  where  such  a  right  has  been  sought  to  be  enforced, 
but  the  right  itself  has  been  frequently  recognized  by  courts,  and  re- 
ferred to  as  established  by  elementary  writers.  The  following,  cited 
by  the  appellant's  counsel,  may  serve  as  illustrations :  Burgess  v. 
Wheate,  1  W.  Black.  150;  Mackreth  v.  Symmons,  15  Ves.  345;  Money  v. 
Dorsey,  7  Smed.  &  M.  22;  Payne  v.  Atterhury,  Harr.  (Mich.)  418;  }yiUis 
V.  Farrar,  3  You.  &  J.  264;  Miller  on  Equitable  Mortgages,  45  Law  Lib. 
18,  19. 

We  can  see  no  reason  why  such  a  lien  should  not  exist.  All  the  rea- 
soning by  which  the  vendor's  equitable  lien  for  the  purchase-money, 
after  conveyance,  is  established,  is  applicable  in  support  of  the  vendee's 
lien  after  payment  or  part  payment,  and  before  conveyance.  It  is  diffi- 
cult to  imagine  upoi\what  principle  a  court  of  equity  could  enforce  the 

^  S.  C.  80  American  Dec.  789,  and  note;  and  see  notes  in  12  American  De- 
cisions 2G2;  and  77  t6.  101. 


74  WARMSTEEY  v.  TAN  FIELD  [part  i. 

one  and  deny  the  other.  It  is  undoubtedly  true  that  the  more  usual 
remedy  is  to  enforce  a  specific  performance.  But  in  cases  like  the  pres- 
ent, where  the  payment  is  to  be  made  by  the  performance  of  partictJar 
services  for  the  vendor,  and  after  they  are  partly  performed  he  refuses 
to  allow  them  to  be  completed,  it  may  be  doubtful  whether  a  specific  per- 
formance could  be  enforced  by  the  vendee;  whether  he  would  not  be 
limited  to  his  damages  for  the  non-performance.  However  that  may  be, 
we  are  satisfied  that  it  is  the  clear  result  of  equitable  principles,  that  if 
he  chooses  to  waive  every  right  except  the  recovery  of  that  which  he  has 
paid,  he  should  be  held  to  have  a  lien  on  the  land  for  that  amount. 

The  amount  to  be  paid,  in  a  case  like  this,  would  be  the  value  of  the 
services  actually  performed,  estimated  according  to  the  contract  price. 
The  contract  having  been  recorded,  the  plaintiff  is  entitled  to  the  same 
remedy  as  against  the  purchaser  that  he  would  have  if  no  conveyance 
had  been  made:  In  re  Howe,  1  Paige,  129;  Eeirsted  v.  Avery,  4  Id.  9; 
Iloagland  v-  Latourette,  1  Green's  Ch.  256.  That  remedy  is  by  a  sale  of 
the  property  to  collect  the  amount  due,  it  being  in  the  nature  of  a  fore- 
closure: 2  Story's  Eq.  Jur.,  sec.  1217. 

The  demurrer  to  the  complaint  should  have  been  overruled.  The 
judgment  is  reversed,  with  costs,  and  the  cause  remanded  for  further 
proceedings  in  accordance  with  this  opinion. 


WARMSTEEY  v.  TANFIELD. 
In  Chancery,  before  Lord  Keeper  Coventry,  1629. 

[1  Reports  in  Chancery  29.]  ' 

The  Plaintiff's  Title  appeared  to  be  that  one  William  Freeman  being 
Possest  of  the  third  part  of  the  Parsonage  for  the  whole  Term  to  come, 
granted  all  his  Interest  therein  to  one  Alhorough  in  Trust  for  the  use  of 
the  said  William  Freeman  and  Alice  his  Wife,  during  their  Lives,  and 
after  to  the  use  of  such  issue  Male  of  their  two  Bodies  as  the  said  Wil- 
liam should  by  Will  appoint,  and  after  the  said  Will,  appointed  the 
Premises  after  the  death  of  the  said  Alice  imto  Richard  Freeman  Son  of 
the  said  William  and  Alice:  And  that  the  said  Interest  in  Law  of  the 
said  Alhorough  came  by  mean  Conveyance  imto  John  and  Robert 
Palmer,  and  that  the  said  Richard  Freeman  during  the  Life  of  the  said 
Alice,  who  not  long  after  died,  assigned  the  Premises  unto  the  Plaintiff, 
and  also  released  to  the  Plaintiff,  and  the  said  Palmers  assured  their 
Tntrrest  in  Law  in  the  said  Premises  to  the  Plaintiff. 

'  S.  C.  2  White  and  Tudor's  Leading  Cases  in  Eq.  Pt.  2,  1530,  (*729),  with 
notes. 


CHAP.  III.]  HOBSON  V.  TKEVOR  75 

The  Defendant  insists  for  Title,  that  the  said  Richard  Freeman  about 
two  years  after  his  Assignment  aforesaid  to  the  Plaintiff,  made  a  Lease 
of  the  Premises  to  Walter  Thomas  and  John  Maherith  who  passed  their 
Estate  to  one  Evans  and  Hawkins  in  Trust  for  the  Defendant  the  Lady 
Tanfield,  and  had  Possession  given  her. 

This  Court  with  the  Judges  taking  Consideration  of  the  said  Assign- 
ments, Grants  and  Release,  were  of  Opinion,  and  declared,  that  howbeit 
a  Grant  of  future  Possibility  is  not  good  in  Law,  yet  a  Possibility 
of  a  Trust  in  Equity  might  be  assigned,  and  the  said  Richard  Freeman's 
Assignment  of  his  said  Trust  unto  the  Plaintiff  is  also  confirmed  by  the 
Assignment  of  the  said  Palmer,  who  had  the  Interest  in  Law,  and  the 
said  Plaintiffs  Assignment  is  also  precedent  to  the  Deed  made  to  the 
said  Thomas,  by  which  the  said  Defendant  the  Lady  Tanfield  claimeth 
the  said  lease. 


HOBSON  V.  TREVOR. 

In  Chancery,  before  Lord  Macclesfield,  1723. 

[2  Peere  Williams  191.] 

The  plaintiff  Hohson  was  a  younger  son  to  lady  Hohmn,  and  put 
apprentice  to  a  linen-draper,  and  under  age;  the  defendant  Trevor  was 
the  eldest  son  of  Sir  John  Trevor  late  Master  of  the  Rolls,  but  had  in- 
curred his  displeasure  and  was  not  admitted  to  his  presence,  and  it  was 
uncertain  whether  he  would  inherit  any  part  of  his  estate. 

The  defendant  Mr.  Trevor  encouraged  the  plaintiff  Hohson  to  court 
his  daughter  without  the  privity  of  lady  Hohson  the  plaintiff's  mother, 
and  the  defendant  Trevor  before  the  marriage,  gave  a  bond  to  the  plain- 
tiff Hohson  dated  8  Nov.  171G,  in  the  penalty  of  5000  I.  and  in  the  condi- 
tion the  then  intended  marriage  betwixt  the  said  plaintiff  and  the 
defendant's  daughter  was  recited,  and  that  the  defendant  had  agreed, 
in  consideration  of  the  said  intended  marriage,  to  settle  and  assure  one 
third  part  of  all  such  real  estate,  as  should  descend  or  come  to  him  the 
said  Trevor  by  and  upon  the  decease  of  his  said  father  the  Master  of 
the  Rolls,  to  the  use  of  the  plaintiff  Richard  Hohson  for  life,  remainder 
to  the  use  of  Elizaheth  the  defendant's  daughter  for  her  life,  remainder 
to  the  heirs  of  the  body  of  "the  said  Elizaheth  by  the  said  plaintiff 
Hohson,  the  remainder  to  the  right  heirs  of  the  said  defendant  Trevor 
after  which  came  these  words,  [now  the  condition  of  the  obligation  is, 
that  if  the  said  marriage  shall  take  effect,  and  the  said  Edward  Trevor, 
shall  within  three  months  after  the  death  of  his  said  father,  settle  and 
assure  one  third  of  all  such  real  estate  as  shall  descend  or  come  to  him 
after  his  father's  death,  then  the  bond  to  be  void.] 


76  HOBSON  V.  TREVOR  [part  i. 

The  marriage  took  effect ;  and  soon  after  Sir  John  Trevor  dj'ing  in- 
testate, whereby  a  great  real  estate  came  to  the  defendant  as  eldest  son 
and  heir  of  his  father,  the  plaintiff  and  his  wife  brought  their  bill  for  a 
specific  performance  of  this  agreement. 

Objected,  The  plaintiff  shall  have  no  more  than  the  i:)enalty  of  5000  Z. 
and  it  is  a  dangerous  precedent  to  suffer  an  heir  apparent  to  enter  into 
any  agreement  to  dispose  of  his  father's  estate  before  he  has  it;  besides 
the  plaintiff  in  this  case  makes  no  settlement,  and  it  is  in  the  discretion 
of  a  court  of  equity,  whether  they  will  execute  this  or  any  agreement 
that  is  brought  before  them. 

But  by  Lo7-d  Chancellor  :^  This  is  an  agreement  made  upon  a  valuable 
consideration,  that  of  the  marriage  of  a  child,  and  therefore  fit  to  be 
executed  in  equity.     And 

It  seems  the  more  reasonable,  m  regard  it  extends  to  no  more  than  a 
third  part  of  the  real  estate  that  was  to  come  to  the  defendant  from  his 
father,  and  this  was  very  hazardous;  for  if  the  defendant  Trevor  had 
died  in  the  life-time  of  his  father,  or  if  there  had  been  a  will,  the  de- 
fendant, who  was  so  well  known  to  be  under  the  displeasure  of  his  father, 
had  but  an  indifferent  prospect,  so  that  it  might  be  reasonably  thought 
that  the  plaintiff  at  that  time,  had  the  worst  of  the  bargain. 

As  to  the  plaintiff's  making  no  settlement,  it  appears  he  was  an  infant 
and  the  defendant  knew  him  to  be  so,  and  consequently  that  he  could  at 
that  time  make  no  settlement ;  probably  the  plaintiff  depended  upon 
his  success  in  trade,  as  he  had  been  an  apprentice  to  a  linen-draper  and 
was  left  a  portion  of  upwards  of  1000  I.  by  his  father. 

Then  it  can  be  no  argument  to  say,  that  the  defendant  ought  only  to 
pay  the  penalty  of  5000  I.  because  the  agreement  is  recited  in  the  bond, 
and  such  agreement  was  not  to  be  the  weaker  but  the  stronger  for  the 
penalty;  and  by  the  same  reason,  that  had  the  penalty  been  higher  and. 
beyond  the  value  of  a  third  part  of  the  real  estate,  in  such  case  the  de- 
fendant would  not  have  been  bound  to  pay  it,  so  now  the  penalty  being 
beneath  the  value  of  a  third  part  of  the  real  estate,  the  plaintiff  is  not 
bound  to  accept  it ;  besides,  it  is  to  be  a  settlement  for  the  benefit  of  the 
issue  of  the  marriage,  and  the  payment  of  the  5000  I.  to  the  husband 
would  not  answer  the  end,  nor  provide  for  such  issue. 

Wherefore  let  the  agreement  be  executed  in  si^ecic;  saving  that  a  third 
part  of  the  real  estate,  which  came  to  the  defendant  from  his  father  Sir 
John  Trevor,  must  be  settled  upon  the  plaintiff  Ilobson  and  his  wife 
for  their  lives,  remainder  to  their  first,  &c.  sons  in  tail  male,  remainder 
to  their  daughters  in  tail  general,  remainder  to  the  defendant  Trevor  in 
fee;  and  let  the  defendant  account  with  the  plaintiff  for  mesne  profits 

'  In  I'nnncll  r.  Taylcr  (1S2.3)  1  Tur  &  R.  101,  Lord  Eldon  toniiod  "Lord 
Maccdcsficld  a  great  coniiiu)!!  lawyer,  and  Lord  Ilardwicko  a  still  greater 
conmion  lawyer."  Lord  Redesdale,  himself  no  mean  judge,  declared  "Lord 
MaccIc'^rKld  an  able  judge,  botli  in  law  and  e(|uity,  as  ever  sat  on  the  bench." 
(Uijvcndcn  v.  Annesley  (1806)  2  8ch.  d  Lcf.  G32.) 


CHAP.  III.]  In  re  GARCELON  '  77 

from  the  end  of  three  months  after  his  father's  death,  and  be  examined 
upon  interrogatories  touching'  his  father's  real  estate,  and  produce  all 
books,  papers  and  writings  upon  oath,  and  pay  costs.' 


In  re  Garcelon  (1894)  104  Cal.  570,  584.'— De  Haven,  J.— The 
first  of  these  covenants  is,  in  substance  and  effect,  an  agreement  upon 
the  part  of  the  iietitioner  to  relinquish  as  heir  presumptive  his  ex- 
pectancy in  that  portion  of  the  estate  of  his  aunt  to  which  the  agreement 
related.  It  is  claimed  by  the  petitioner  that  such  an  agreement  is  void 
under  sections  700  and  1045  of  the  Civil  Code  of  this  state,  the  first  of 
tvhich  provides  that  "  a  mere  possibility,  such  as  the  expectancy  of  an 
heir  apparent,  is  not  to  be  deemed  an  interest  of  any  kind,"  and  the 
latter  section  declaring  that  "  a  mere  possibility,  not  coupled  with  an 
interest,  cannot  be  transferred." 

These  sections  simply  state  the  well-settled  and  well-understood 
rule  of  the  common  law  upon  the  subject  to  which  they  relate.  At 
common  law  a  mere  possibility,  such  as  the  expectancy  of  an  heir,  was 

'"There  are  two  kinds  of  possibilities;  the  one,  a  bare  possibility;  that 
which  the  heir  has  from  the  courtesy  of  his  ancestor,  and  which  is  nothing 
more  than  a  mere  hope  of  succession.  Such  a  possibility  undoubtedly  is  not 
the  object  of  disposition;  for  if  the  heir  were  to  dispose  of  it  during  the  life 
of  the  ancestor,  though  it  afterwards  devolved  on  him  from  his  ancestor,  such 
disposition  would  be  void."  Per  Lord  Kenyon,  Ch.  J.,  in  Jones  v.  Roe  (1789) 
3  T.  R.  88,  93. 

In  Carlton  v.  Leighton  (1805)  3  Meriv.  6G7,  f)71,  Lord  Chancellor  Eldon  is 
reported  to  have  decided  "  That  the  expectancy  of  an  heir  presumptive  or  ap- 
parent (the  fee  simple  being  in  the  ancestor)  was  not  an  interest,  or  a  pos- 
sibility, nor  was  capable  of  being  made  the  subject  of  assignment  or  con- 
tract; that  the  cases  cited  were  cases  of  covenant  to  settle  or  assign  property 
which  should  fall  to  the  covenantor;  where  the  interest  which  passed  by  the 
covenant  was  not  an  interest  in  the  land,  but  a  right  under  the  contract; 
therefore  that  no  interest  in  the  estate  in  question  passed  under  the  bargain 
and  sale  of  the  commissioners." 

To  this  statement  of  Lord  Eldon,  Mr.  Spence  says, — "But  a  man  may 
make  a  binding  contract,  as  in  Bceklcy  v.  Newland,  2  P.  W.  182;  Eobson  v. 
Trevor  2  P.  W.  191,  that  if  he  should  become  possessed  of  a  particular  estate, 
he  will  execute  a  security  upon  it;  the  interest  which  passes  by  the  covenant 
in  such  case  is  not  an  interest  in  the  land  till  it  comes  in  possession,  but  a 
right  under  the  contract:  Buckle  v.  Baines,  8  8im.  525." — 2  Jtirisdictioti  of 
the  Court  of  Chancery  614,  n.    (c). 

An  earlier  case  than  any  cited  is  Wiseman  v.  Roper  (1646)  1  Rep.  in  Ch. 
158,  in  which  the  defendant  is  made  to  perform  specifically  an  agreement  to 
convey  lands  that  might  descend  to  him,  the  lands  having  descended.  (On 
the  question  of  consideration,  however,  the  case  seems  no  longer  law.) 

-S.  C.  43  Am.  St.  Rep.   134,  with  notes. 


78  In  re  GARCELON  [part  i. 

not  regarded  as  such  an  existing  interest  as  to  be  the  subject  of  a  sale  or 
capable  of  passing  by  assignment;  but  in  equity  the  rule  was  di'fferent, 
and  agreements  for  the  sale  or  release  of  expectancies,  if  fairly  made  and 
for  an  adequate  consideration,  were  enforced  upon  the  death  of  the 
ancestor;  and,  in  our  opinion,  it  was  not  the  intention  of  the  legislature, 
in  enacting  the  sections  of  the  code  just  referred  to,  to  make  any  change 
in  the  rule  by  which  courts  of  equity  were  therefore  governed  in  dealing 
with  this  class  of  contracts.  This  construction  of  these  sections  is  in 
harmony  with  section  5  of  the  same  code,  which  declares  that  the  i^ro- 
visions  of  that  code,  "  so  far  as  they  are  substantially  the  same  as 
existing  statutes  or  the  common  law,  must  be  construed  as  continuations 
thereof,  and  not  as  new  enactments  " ;  and  also  follows  the  presumption, 
that  the  legislature,  in  the  enactment  of  statutes,  does  not  intend  ta 
overturn  long-established  principles  of  law  unless  such  intention  is  made 
to  clearly  appear  either  by  express  declaration  or  by  necessary  implication. 

Mr.  Story,  in  section  1040  c,  volume  2,  of  his  work  on  Equity  Juris- 
prudence, states  the  equitable  rule  upon  the  subject  of  such  agreements 
as  the  one  before  us  as  follows :  "  So,  even  the  naked  possibility  or 
expectancy  of  an  heir  to  his  ancestor's  estate  may  become  the  subject 
of  a  contract  of  sale  or  settlement ;  and,  in  such  a  case,  if  made  hona  fide 
for  a  valuable  consideration,  it  will  be  enforced  in  equity  after  the  death 
of  the  ancestor;  not,  indeed,  as  a  trust  attaching  to  the  estate,  but  as  a 
right  of  contract."  And  see,  also,  as  sustaining  the  same  proposition, 
Pomeroy's  Equity  Jurisprudence,  2d  ed.,  sees.  168,  953;  Bacon  v.  Bon- 
ham,  33  N.  J.  Eq.  614. 

In  accordance  with  this  principle  it  has  been  held  in  many  cases  in 
which  the  question  has  arisen  that  an  heir  may  release  to  the  ancestor 
his  expected  share  in  the  ancestor's  estate.  Thus,  in  Havens  v.  Thomp- 
son, 26  N.  J.  Eq.  383.  It  was  held  that  a  son,  by  such  release  to  his 
father,  estopped  himself  from  claiming  as  heir  any  portion  of  the 
father's  estate.  In  that  case  it  appeared  that  the  father  gave  to  the  son 
the  sum  of  six  hundred  dollars,  upon  the  condition  that  it  should  be 
accepted  in  full  satisfaction  of  his  interest  in  the  father's  estate,  the  son 
executing  a  receipt  stating  that  the  money  was  received  "  in  full  in  lieu 
of  dowry,"  The  chancellor  construed  the  receipt  in  view  of  the  facts 
surrounding  its  execution  as  a  release,  and  said :  "  I  regard  this  in- 
strument as  an  agreement  by  which  Benjamin,  in  consideration  of  the 
money  paid  to  him  by  his  father,  agreed  with  the  latter  that  he  would 
make  no  claim  to  a  share  of  his  father's  estate  should  the  latter  die 
intestate,  but  therefrom  would  be  debarred  by  that  instrument  made- 
upon  what  was  a  satisfactory  compensating  consideration.  Such  an 
agreement  may  be  made  between  a  father  and  his  child  in  regard  to  the- 
interest  of  the  latter  in  the  estate  of  the  former,  and  the  effect  will  be 
given  to  it  in  equity  according  to  the  intention  of  the  parties  ";  and  the 
rule  thus  declared  was  afterwards  approved  in  Brands  v,  De  Witt,  44 
N,  J,  Eq.  545, 


CHAP.  III.]  In  re  GARCELON  79 

In  Bishop  V.  Davenport,  58  111.  105,  it  was  shown  that  the  father  in 
his  lifetime  gave  to  certain  of  his  children  property,  and  took  from  them 
an  instrument  in  writing  in  which  they  acknowledged  that  such  property 
was  received  by  them  as  their  full  share  of  his  estate.  The  father  died 
intestate,  and  the  court,  in  passing  upon  the  question,  held  that  the 
transaction  was  not  an  advancement,  and  that  the  instrument  signed  by 
the  children  operated  as  a  release  by  them  of  their  expectancies  in  their 
father's  estate,  and  should  be  upheld  as  such. 

So,  also,  in  Kershaw  v.  Kershaw,  102  111.  307,  a  son  accepted  from  his 
father  a  deed,  the  deed  reciting  that  "  said  land  is  deeded  as  an  advance- 
ment to  said  John  W.  Kershaw  out  of  the  estate  of  said  Joseph  Kershaw, 
and  the  deed  is  accepted  by  said  John  as  his  full  share  of  his  father's 
estate."  The  court  in  that  case  held  that  the  acceptance  of  the  deed 
bound  the  son  to  the  same  extent  as  if  he  had  signed  it,  and  that  the 
conveyance  did  not  constitute  an  advancement,  but  operated  as  "  an 
executed  contract,  whereby  an  heir  released  his  expectancy  in  his 
father's  estate  in  consideration  of  a  present  grant  of  real  estate."  And 
it  was  further  there  decided  that  the  son  was  estopped  from  making  any 
further  claim  as  heir  at  law  to  any  portion  of  his  father's  estate. 

In  Crum  v.  Sawyer,  132  111.  443,  the  court,  in  a  well-considered  opinion, 
held  that  a  husband  might,  for  an  adequate  consideration,  enter  into  a 
valid  contract  with  his  wife,  releasing  all  his  interest  as  her  heir  in  her 
lands  and  personal  estate,  saying :  "  There  can  be  no  question,  then, 
that  the  complainant's  contingent  interest  or  expectancy  as  the  heir 
of  his  wife  in  her  real  and  personal  estate  was  a  proper  subject  of  con- 
tract, and  the  contract  in  question  having  been  made  upon  a  valuable 
consideration  by  parties  capable  of  contracting  with  each  other,  and, 
so  far  as  the  evidence  shows,  with  entire  fairness,  it  should,  as  to  such 
contingent  interest  or  expectancy,  be  enforced  according  to  its  terms." 
And  in  Powers'  Estate,  63  Pa.  St.  443,  it  was  decided  that  a  father 
might  make  a  contract  with  his  child  which  would  bar  the  latter  as  his 
licir  at  law,  and  that  when  property  had  been  received  by  the  son  from 
the  father,  the  son  giving  a  receipt  reciting  that  the  same  was  received 
in  full  of  his  share  as  heir  at  law,  he  was  thereby  estopped  upon  the 
death  of  the  father  from  claiming  any  further  part  of  his  estate. 

Without  multiplying  authorities  upon  this  point,  and  many  others 
might  be  cited  to  the  same  effect,  it  is  sufficient  to  say  that  we  are  en- 
tirely satisfied  with  the  rule  declared  in  the  foregoing  cases,  and  hold 
that  it  is  competent  for  an  heir  under  the  limitations  stated  in  that 
rule  to  relinquish  to  his  ancestor  all  interest  in  the  estate  of  the  latter 
which  might  otherwise  in  the  future  vest  in  him  as  such  heir. 


80  BEEVERTON'S  CASE  [part  i. 


A.  B.  V,  J.  R. 

In  the  Exchequer,  before  Lord  Chancellor  Waynflete, 
Bishop  of  Winchester,  1459. 

[Year  Booh,  37  Henry  VI,  folio  13.]  ' 

A.  B.  having  bought  from  J.  R.  certain  debts  owing  to  him  from 
various  persons,  and  given  his  bond  to  J.  R.  for  securing  the  price,  prayed 
in  equity  to  be  discharged  of  the  bond,  on  the  ground  that  debts  were 
choses  in  action  and  no  property  passed,  and  the  bargain  gave  no  action, 
and  the  debtors  still  remained  the  debtors  of  J.  R.,  and  he  (A.  B.)  had 
nothing  for  the  purchase-money.  Thereupon  A.  B.  obtained  a  subpoena; 
but  inasmuch  as  the  matter  was  doubtful  to  the  Chancellor  [Lawrence 
Booth,  Bishop  of  Durham]  he  adjourned  it  into  the  Exchequer  Chamber 
before  himself  and  the  judges  of  both  Benches :  and  all  the  judges  were  of 
opinion  that  as  the  plaintiff  could  not  have  quid  pro  quo,  the  obligee 
ought  to  release  the  bond  to  the  plaintiff.  Upon  this  it  was  ordered  in 
Chancery  that  the  bond  should  be  brought  into  Court,  or  that  the  obligee 
should  make  an  acquittance  or  lease  to  the  obligor;  and  the  defend- 
ant refusing  to  do  so  was  committed  to  the  prison  of  the  Fleet  until  he 
should  choose  to  comply. 


BREVERTON'S  CASE. 

In  the  Exchequer,  1538. 

[Dyer  30  b.] 

This  case  was  debated  in  the  exchequer:  Breverhon,  who  was  at- 
tainted of  treason  on  the  last  day  of  Easter  Term,  had  certain  bonds 
which  were  forfeited  to  the  king,  and  the  king  granted  those  bonds  to 
the  wife  of  Breverton,  without  any  words  to  impower  the  grantee  to 
bring  actions  upon  the  bonds  in  her  own  name;  and  yet  the  wife  brings 
an  action,  viz.  an  information  in  her  own  name  upon  the  bonds;  and 
upon  this,  there  was  a  demurrer  in  judgment,  because  the  suit  was  in 
hor  own  name;  and.  Whether  it  ought  to  be  in  the  name  of  the  king? 
was  the  question.  And  it  was  adjudged  {ut  audivi)  that  the  action  was 
well  brought,  for  the  king  alone  may  grant  a  cliose  in  action.  And  for 
the  same  reason  that  he  has  granted  the  bonds,  which  are  the  substance 
and  foundation  of  the  actions,  the  law  implies  that  the  grantee  shall  use 
the  means  to  come  at  the  things  granted,  &c.' 

'  Tlif  fjiMO  is  prinlcd  as  it  is  translntod  in  1  C.  I'.  Cnnprr's  Rcporfu  515.  I\Ir. 
Ames  gives  a  less  iil)ri(lj.'0(l  translation  of  ilio  sanio  rase  (1  <\iscs  in  Equity 
./iirisfUrtion  1 ) . 

■■' " 'Twas  said  for  law  that  llio  King  may  grant  a  thing  in  action,  which  is 


CHAP.  III.]  THE  KING  v.  TWINE  81 


THE  KING  V.  TWINE. 

In  the  Exchequer,  1608. 

[Croke's  James  179.] 

Upon  demurrer,  the  case  was,  That  one  George  Yorlc  recovered  against 
John  Allen  four  thousand  pounds  damages  in  an  action  on  the  case. 
Afterwards  George  Yorl-,  being  oiitlawed  in  a  personal  action,  died;  and 
queen  Elizaheth,  in  the  thirty-fourth  year  of  her  reign  (reciting  that  he 
was  outlawed  and  dead),  granted  all  his  goods,  chattels,  and  debts  to 
Francis  Anger,  to  the  use  of  Mary  York.  Afterwards  Francis  Anger,  by 
deed,  assigned  that  debt  and  judgment  to  Christopher  Tivine:  and  not- 
withstanding, an  extent  issued  in  the  king's  name,  to  extend  all  the 
lands  which  the  said  John  Allen  had  at  the  time  of  the  judgment;  and 
the  lands  in  the  possession  of  Thomas  Twine,  which  he  purchased  after 
the  judgment,  were  extended.  Thereupon  he,  as  terre-tenant,  pleaded 
against  this  extent,  to  be  discharged  thereof,  it  being  upon  assignment 
made  34.  Eliz.  by  the  queen;  whereas  by  the  assignment  made  by  Anger 
to  Twine,  he  is  chargeable  to  him  only,  and  not  to  the  king.  It  was 
thereupon  demurred,  and  argued  divers  times  in  the  exchequer.  The 
principal  question  was.  Whether,  after  the  assignment  of  this  debt  by 
queen  Elizaheth,  the  king  may  extend  in  his  own  name  for  the  benefit 
of  the  patentee,  and  the  patentee  thereby  have  the  suit  in  the  king's 
name?  And  all  the  Barons,  after  the  argument  at  the  bar,  resolved, 
that  as  the  king's  grant  of  a  thing  in  action  is  good  enough,  so  this  debt, 
which  is  forfeited  to  the  king  by  the  outlawry  of  York,  is  well  granted ; 
and  the  grantee  may  have  the  benefit  to  levy  this  debt  by  action  in  his 
own  name,  or  by  extent  in  the  king's  name,  altho'  he  hath  not  any  words 
in  his  grant  to  sue  it  in  the  name  of  the  king,  as  is  usual  in  such  cases. 
Eut  the  assignment  over  of  this  debt  by  Francis  Anger  (the  king's 
patentee)  to  Christopher  Twine,  is  merely  void;  for  there  cannot  by  law 
be  any  assignment  made  by  a  common  person  of  this  debt.^  It  was  there- 
fore adjudged,  that  the  plea  was  ill,  and  no  cause  of  discharge;  and  that 
the  land  should  remain  in  extent  for  the  king.  Tide  4.  Hen.  8.  Dyer, 
fol.  1.  and  fol.  30.    Breton's  Case,  39.  Hen.  6.  pi.  26. 

personal:  as  debt,  and  damages,  and  the  like,  or  a  thing  mixed;  as  the  ward 
of  body;  but  not  a  thing  real,  as  an  action  of  land,  and  the  like,  as  Rights, 
Entries,  Actions,  and  the  like  which  Ahhois  might  have,  (and  that  the  King 
shall  have  these  by  the  Statute  of  dissolution  of  A66ies  31.  H.  8.)  These 
things  in  action  the  King  cannot  grant.  *  *  *  33.  H.  8.  B.  Pattents  98." 
Brooke's  New  Cases,  March's  Translation,  34. 

'  "  Here  Littleton  reciteth  one  of  the  maxims  of  the  common  law ;  and  the 
reason  hereof  is,  for  avoyding  of  maintenance,  suppression  of  right,  and  stir- 


82  CEOUCn  V.  MARTIN  AND  HARRIS  [part  i. 


CROUCH  V.  MARTIN  and  HARRIS. 

In  Chancery,  before  Lord  Keeper  Cowper,  1707. 

[2  Vernon  595.] 

The  plaintiff  lent  Arthur  Harris,  late  husband  of  the  defendant,  1001. 
on  Bottom-Rhea;  and  as  a  farther  security  assigned  to  the  plaintiff  the 
wages,  that  would  become  due  to  him  in  the  voyage  to  the  Indies,  as 
chirurgeon  of  the  ship  at  41.  10s.  per  month ;  the  ship  returned  safe  to 
London,  and  1451.  became  due  on  the  Boffom-Rhea  bond.  Arthur  Harris 
died  in  the  voyage;  the  defendant,  his  widow,  took  out  administration; 
and  there  being  a  bond  given  by  her  husband  on  her  marriage  to  leave 
her  4001.,  if  she  survived  him,  she  confessed  judgment  thereon,  and  in- 
sisted that  judgment  ought  to  be  first  paid,  and  the  wages  due  to  the 
husband  applied  to  that  purpose. 

Per  Cur.  Seamen's  wages  are  assignable;  and  the  assignment  speci- 
fically binds  the  wages;  and  in  truth  the  advancing  the  1001.  on  the 
credit  of  the  wages  is,  as  it  were,  paying  the  wages  before  hand;  and 
the  seaman  or  his  widow  must  not  have  his  wages  twice. 

It  is  a  chose  en  action,  being  due  by  contract,  although  the  service  not 
then  done,  and  a  chose  en  action  is  assignable  in  equity  upon  a  consid- 
eration paid.' 

ring  up  of  suites,  and  therefore  nothing  in  action,  entrie,  or  re-entrie,  can  be 
granted  over;  for  so  under  colour  thereof  pretended  titles  might  bee  granted 
to  great  men,  whereby  right  might  bee  trodden  downe,  and  the  weake  op- 
pressed, which  the  common  law  forbiddeth,  as  men  to  grant  before  they  be  in 
possession." — Co.  Lit.  214a. 

'  "Though  the  law  does  not  admit  an  assignment  of  a  chose  in  action,  this 
Court  does;  and  any  words  will  do,  no  particular  words  being  necessary 
thereto." — Per  Lord  Hardwicke  in  Roiv  v.  Dawson  (1749)  1  Vcs.  8r.  331,  332. 
The  same  high  authority  in  a  case  a  little  later  said:  "There  was  a  wise 
reason  in  the  law's  not  allowing  a  right  to  sue  to  be  assigned,  that  it  tended 
to  champerty  and  maintenance  to  pass  debts  into  the  hands  of  the  more  power- 
ful to  oppress  lower  people.  Yet  it  is  now  established  in  this  court,  that  a 
chose  in  action^  niay  be  assigned  for  a  valuable  consideration."  Wright  v. 
Wright   (174n-,5b)    1  Vcs.  Sr.  40!),  411. 

"  That  a  debt,  or  other  chose  in  action,  may  be  assigned  in  equity  without 
any  concurrence  on  tlie  part  of  the  debtor,  and  that  no  particular  words  are 
necessary,  have  been  settled  by  a  long  series  of  decisions."  J'cr  Sir  John 
liomilly  in  Bell  v.  R.  R.  Co.    (1S.52)    1.5  Bcav.  548,  552. 

It  may  be  of  interest  to  note  that  Cowper  was  the  first  Chancellor  to  hold 
the  great  seal  after  the  union  of  England  and  Scotland  in  1707.  He  is  there- 
fore the  first  Lord  Chancollor  of  Great  Ihitain.  While  deficient  in  logical 
faculty  and  grasp  of  law  as  a  science.  Pope  and  Chesterfield  considered  liim 
a  consummate  orator.  Ilis  namesake  and  kinsman,  William  Cowper,  will 
always   associate  the  name  with   literature. 


CHAP.  III.]  LEGn  V.  LEGH  83 


PAKKEE  V.  LILLY. 
In  the  Queen's  Bench,  1712. 

[10  Modern  102.] 

A  man  assigns  his  bond  to  B.  B.  sues  this  bond  in  the  name  of  the 
assignor,  and  has  judgment.  On  a  \\Tit  of  error  brought,  the  judgment 
is  affirmed;  and  after  execution  is  taken  out,  but  before  it  was  returned, 
the  assignor  gives  a  warrant  of  attorney  to  confess  satisfaction  upon 
record,  which  is  accordingly  done,  and  upon  this  a  supersedeas  is  taken 
out  to  stop  the  execution. 

It  was  moved  to  set  aside  the  supersedeas,  because  after  assignment 
the  Court  will  not  suffer  the  assignor  to  give  a  warrant  of  attorney  to 
acknowledge  satisfaction;  and  for  this  1.  Kehle,  803.  was  quoted. 

But,  as  to  this,  it  was  said,  that  the  assignment  was  matter  of  equity, 
and  was  more  proper  for  chancery  tlian  for  this  court;  and  a  late  case 
was  quoted  in  the  common  pleas,  where  a  bond  was  taken  in  trust  for 
another,  and  the  obligee  dying  while  the  suit  upon  this  bond  pended,  it 
was  held  that  the  cestuy  que  trust  could  not  go  on  in  the  action,  because 
this  Court  could  not  take  notice  of  the  trust,  or  of  any  other  plaintiff 
than  who  appeared  to  be  so  upon  record. 

And  of  this  opinion  was  the  Court. 

It  was  further  insisted,  in  favour  of  the  motion,  that  after  execution 
was  gone  out,  it  was  not  regular  to  grant  a  supersedeas  without  a  Judge's 
hand. 

The  Court  took  time  to  inquire  into  the  practice. 


LEGH  V.  LEGH. 

In  the  Common  Pleas,  1799. 
[1  Bosanquet  and  Puller  *447.] 

On  a  former  day.  Shepherd,  Serjt,  shewed  cause  against  a  rule  Nisi 
obtained  by  Le  Blanc,  Serjt.  for  setting  aside  a  plea  of  release  in  an 
action  on  a  bond,  and  ordering  the  release  to  be  cancelled. 

The  case  as  disclosed  by  the  affidavits  in  support  of  the  rule  appeared 
to  be  this:  Frances  Legh  having  giving  a  bond  to  Sarah  Legh  to  secure 
751.  Sarah  assigned  it  to  John  Legh  as  a  security  for  the  payment  of  a 
lesser  sum,  of  which  Frances  had  notice:  John  having  brought  an  action 
on  the  bond  against  Frances  in  the  name  of  Sarah,  Sarah  gave  a  release 
to  Frances  by  whom  she  had  been  satisfied  her  debt,  and  this  release  was 
pleaded. 


84  LEGH  V.  LEGH  [part  i. 

Eyre,  Ch.  J.'  The  conduct  of  this  Defendant  has  been  against  good 
faith,  and  the  only  question  is,  wliether  the  Plaintiff  must  not  seek  relief 
in  a  Court  of.  Equity?  The  Defendant  ought  either  to  have  paid  the 
person  to  whom  the  bond  was  assigned,  or  have  waited  till  an  action  was 
commenced  against  him,  and  then  have  applied  to  the  Court.  Most 
clearly  it  was  in  breach  of  good  faith  to  pay  the  money  to  the  assignor 
of  the  bond  and  take  a  release,  and  1  rather  think  the  Court  ought  not  to 
allow  the  Defendant  to  avail  himself  of  this  plea,  since  a  Court  of  Equity 
would  order  the  Defendant  to  pay  the  Plaintifi  the  amount  of  his  lien 
on  the  bond,  and  probably  all  the  costs  of  the  application. 

BuLLER^  J.  There  are  many  cases  in  which  the  Court  has  set  aside 
a  release  given  to  prejudice  the  real  Plaintiff.  All  these  cases  depend 
on  circumstances.  If  the  release  be  fraudulent,  the  Court  will  attend  to 
the  application. 

The  Court  recommended  the  parties  to  go  before  the  prothonotary  in 
order  to  ascertain  what  sum  was  really  due  to  the  Plaintiff  on  the  bond. 

Shepherd,  on  this  day,  stated,  that  the  Defendant  objected  to  going 
before  the  prothonotary,  upon  which  the  Court  said,  that  the  rule  must 
be  made  absolute.  He  then  applied  for  leave  to  plead  payment  of  the 
bond,  and  contended,  that  as  this  was  not  an  application  under  the 
Statute  to  plead  several  pleas,  the  Court  had  no  discretion. 

Eyre,  Ch.  J.  The  Court  has  in  many  cases  refused  to  allow  a  party  to 
take  his  legal  advantage,  where  it  has  appeared  to  be  against  good  faith. 
Thus,  we  prevent  a  man  from  signing  judgment  who  has  a  right  by  law 
to  do  so,  if  it  would  be  in  breach  of  his  own  agreement.  In  order  to  de- 
feat the  real  Plaintiff,  this  Defendant  has  colluded  with  the  nominal 
Plaintiff  to  obtain  a  release;  and  I  think  therefore  the  plea  of  release 
may  be  set  aside  consistently  with  the  general  rules  of  the  Court.  And 
if  so,  the  Defendant  cannot  be  permitted  to  plead  payment  of  the  bond, 
as  that  would  amount  to  the  same  thing. 

Bi'LLEH,  J.  The  Court  proceeds  on  the  ground,  that  the  Defendant 
has  in  effect  agreed  not  to  plead  payment  against  the  nominal  obligee. 

Upon  this  the  Defendant  consented  to  go  before  the  prothonotary." 

'  "A  name  that  has  great  authority  with  me  *  *  *  ITis  judnments  were 
very  elaborate,  and  generally  in  writing;  and  when  the  energy  of  mind  which 
he  applied  to  them  is  considered,  I  am  surprised  that  it  could  be  supposed 
that  he  had  contradicted  himself  and  decided  differently  in  the  two  cases.  I 
think  that  upon  an  attentive  perusal,  they  will  be  found  to  be  reconcilable." 
]'er  Lord  FAdon  in  Ihifik  v.  Lewis  (1821)    1  Jac.  Ch.  369. 

'•'  In  Andrcuft  v.  lirccLcr  (ISOO)  1  Johns.  Ca.  411,  in  an  action  of  debt  on  a 
bond  con(litif)n('d  to  execute  a  certain  deed  therein  mentioned,  it  was  resolved, 
Per  Curiam,  tliat  "  a  release  after  the  assi<j;iuncnt  of  llie  bond  and  notice  to 
the  defendant,  is  a  nullity,  and  outrlit  not  (<i  be  regarded."  And  see  the 
elaborate  note  of  the  rejiorter,  Mr.  Shepard,  in  the  second  edition  of  Johnson's 
Cases. 


CHAP.  III.]  THALLHIMER  v.  BRINCKERHOFF      .  85 

Thallhimer  v.  Brinckeriioff  (1824)  3  Cowen  623,  C45.— T/ie  Chan- 
cellor [Sanford}.  It  was  a  principle  of  the  common  law,  that  a  right  of 
action  could  not  be  transferred  by  him  who  had  the  right,  to  another. 
When  we  seek  the  reason  of  this  rule,  we  find  it  in  the  motive  already 
mentioned,  an  apprehension  that  justice  would  fail,  and  oppression  would 
follow,  if  rights  of  action  might  be  assigned.  "Nothing,"  says  Coke,  Co. 
Lit.  114  a.;  "nothing  in  action,  entry  or  re-entry,  can  be  granted  over; 
for  so,  under  colour  thereof,  pretended  titles  might  be  granted  to  great 
men,  whereby  right  might  be  trodden  down,  and  the  weak  oppressed." 
Feeble,  partial,  and  corrupt,  must  have  been  the  administration  of  justice, 
where  such  a  reason  could  have  force.  In  early  times,  this  rule  concern- 
ing rights  of  action  was  rigorously  enforced.  As  the  entire  right  of  action 
could  not  be  assigned,  so  no  part  of  it  could  be  transferred,  and  no  man 
could  purchase  another's  right  to  a  suit,  either  in  whole,  or  in  part.  Hence, 
the  doctrine  of  maintenance  which  prohibits  contracts  for  a  part  of  the 
thing  in  demand,  was  adopted  as  an  auxiliary  regulation,  to  enforce  the 
general  principle  which  prohibited  the  transfer  of  all  rights  of  action. 
But  the  rule  of  the  common  law,  that  rights  of  action  can  not  be  assigned, 
has  in  modern  times  been  reversed;  the  apprehension,  that  justice  would 
be  trodden  down,  if  property  in  action  should  be  transferred,  is  no  longer 
entertained;  and  the  ancient  rule  now  serves  only  to  give  form  to  some 
legal  proceedings.  In  the  courts  of  equity,  this  rule  was  never  followed; 
and  those  courts  have  always  considered  and  treated  the  rule  as  unjust, 
and  have  supported  assignments  of  rights  of  action.  Experience  has 
fully  shewn,  not  only,  that  no  evil  results  from  the  assignment  of  rights 
of  action,  but  that  the  public  good  is  greatly  promoted  by  the  free  com- 
merce and  circulation  of  property  in  action,  as  well  as  of  property  in 
possession. 

The  general  law,  both  in  England  and  here,  now  is,  that  rights  of  ac- 
tion may  be  transferred;  and  as  the  laws  concerning  maintenance  are 
still  in  force,  the  present  state  of  the  law  is,  that  while  an  entire  right 
of  action  may  be  transferred  to  a  purchaser,  with  complete  effect,  a 
contract  to  transfer  a  part  of  a  right  of  action,  is  void.  The  primary 
rule  forbidding  the  assignment  of  a  right  of  action,  has  ceased;  but  the 
auxiliary  sanction  concerning  the  assignment  of  a  part  of  such  a  right, 
remains  in  force.  The  English  judges  feeling  that  the  original  reasons 
for  the  law  of  champerty  and  maintenance,  had  ceased,  have  gradually 
mitigated  that  law,  by  interpretation  and  exceptions;  and  the  present 
state  of  English  opinion  on  this  subject,  may  be  seen  in  4  D.  &  E.  340, 
341 ;  where  Buller,  justice,  expresses  himself  in  terms  which  do  not  dis- 
guise his  contempt  for  the  whole  doctrine  of  maintenance. 

In  many  of  the  states  of  this  union,  these  laws  are  not  in  force;  and 
the  want  of  them,  is  said  to  be  no  inconvenience.^ 

'  Perhaps  the  best  illustration  of  the  triumph  of  eqtiity  over  law  in  the 
matter  of  non-existent  property  or  of  future  rights  is  to  be  found  in  the 
mortgage  of  after   acquired   property:     Bolyroyd  v.   Marshall    (1861)    10  H. 


86  PEARNE  v.  LISLE  [part  i. 

Section  2.   Inadequacy  of  Legal  Remedy. 

A.    Inadequacy  of  Legal  Damages. 

PUSEY  V.  PUSEY. 

In  Chancery,  before  Lord  Keeper  North/  1G84. 

[1  Vernon  273.] 

Bill  was,  that  a  horn,  which  time  out  of  mind  had  gone  along  with  the 
plaintiff's  estate,  and  was  delivered  to  his  ancestors  in  ancient  time  to 
hold  their  land  by,  might  be  delivered  to  him;  upon  which  horn  was  this 
inscription,  viz.  pecote  ihis  home  io  hold  huy  ihy  land. 

The  defendant  answered  as  to  part,  and  demurred  as  to  other  part; 
and  the  demurrer  was,  that  the  plaintiff  did  not  by  his  bill  pretend  to  be 
intitled  to  this  horn,  either  as  executor  or  devisee;  nor  had  he  in  his  bill 
charged  it  to  be  an  heir  loome. 

The  demurrer  was  over-ruled,  because  the  defendant  had  not  fully  an- 
swered all  the  particular  charges  in  the  bill,  and  was  ordered  to  pay  costs. 
And  the  Lord  Keeper  was  of  opinion,  that  if  the  land  was  held  by  the 
tenure  of  a  horn  or  cornage,  the  heir  would  be  well  intitled  to  the  horn 
at  law. 


PEARNE  r.  LISLE. 

In  Chancery,  before  Lord  Hardwicke,  1749. 

{Amhler  75.] 

Order  for  Ne  exeat  regno  was  made  on  ISth  April,  1748,  till  answer 
and  further  order,  and  to  be  marked  500L  on  affidavit  to  the  following 
effect:  That  plaintiff  was  entitled  to  fourteen  Negroes  at  Antigua;  that 
his  agent  let  them  to  defendant  for  hire,  at  a  yearly  rent  which  amounted 

L.  ('.  101;  TaiUnj  v.  Official  nccrivcr  (1888)  L.  7?.  13  App.  Cos.  523.  In 
these  cases  the  authorities  and  history  of  the  doctrine  are  carefully  examined. 
Brett  V.  Carter,  (1875)  2  Loic.  458  gives  Federal  view;  Moody  v.  '\^'r^f|ht 
(1847)  13  Met.  17;  Rochester  DistiUing  Co.  v.  Rnsry  (1894)  142  X.  Y.  570; 
Central  Trade  Co.  v.  West  India  Co.  (1901)  1(58  N.  Y.  314  give  the  mod- 
ified common  law  obtaining  in  some  jurisdictions. 

'  The  lord  keeper  has  been  lauded  to  the  skies,  by  his  brother  Roger  North, 
and  on  the  other  hand  consigned  to  the  bottomless  pit  by  Lord  Campbell  in  his 
"Lives  of  the  Lord  Chancellors."  The  truth  is  as  often  the  golden  mean 
between  the  extremes.  North  was  of  the  earth,  earthy,  but  as  a  la^^we^  he 
was  heUI  in  great  and  deserved  respect.  A  derision  of  his — Ncircomh  v.  Bon- 
ham  ( lf;81-H4)  1  Vcrn.  7.  214,  232.  ovcrrnling  T>ord  Nottingham — has  stood  the 
test  of  time  and  criticism,  than  whicli  there  can  be  no  greater  praise. 


CHAP.  HI.]  PEAENE  v.  LISLE  87 

to  lOOZ.  Antigua  money:  that  the  defendant  refuses  to  pay  for  two  years 
service,  which  is  of  the  value  of  lOOL  Sterling,  and  also  refuses  to  deliver 
the  Negroes  to  jilaintiff's  agent;  that  defendant  has  declared  he  intends 
to  leave  England  soon  and  go  to  Antigua:  that  plaintiff  has  no  remedy  at 
law,  his  witnesses  being  abroad,  and  therefore  filed  his  bill  in  this  Court. 

On  motion  to  discharge  this  order.  Lord  Ilardwicke,  C.  declared  the 
rule  of  the  Court  to  be.  not  to  grant  a  Ne  exeat  regno  on  a  mere  legal 
demand  for  money;  if  it  is  of  such  a  value,  the  defendant  may  be 
arrested,  and  obliged  to  give  bail,  who  will  be  liable  unless  they  surren- 
der him;  and  he  may  be  as  easily  taken  by  that  process  as  on  a  Ne  exeat 
regno.  The  almost  only  exception  to  that  rule  is  in  the  case  of  alimo;iy 
decreed  by  the  Spiritual  Court ;  that  court  cannot  take  bail,  and  therefore 
this  Court  will  lend  its  assistance  in  favour  of  the  woman. 

On  consideration  of  the  nature  of  the  demand,  the  merits  of  the  case, 
and  the  person  of  the  defendant,  and  the  place  he  is  going  to.  which  are 
all  the  reasons  given  for  granting  this  writ,  I  will  discharge  the  order. 

1st,  As  to  the  nature  of  the  demand.  It  is  for  the  use  of  Negroes.  A 
man  may  hire  the  servant  of  another,  whether  he  be  a  slave  or  not,  and 
will  be  bound  to  satisfy  the  master  for  the  use  of  him.  I  have  no  doubt 
but  trover  will  lie  for  a  Negro  slave ;  it  is  as  much  property  as  any  other 
thing.  The  case  in  Sail:  666.  was  determined  on  the  want  of  proper 
description.  It  was  trover  pro  uno  ^thiope  vocat.  Negro,  without  saying 
slave;  and  the  being  Negro  did  not  necessarily  imply  slave.  The  reason 
said  at  the  bar  to  have  been  given  by  Lord  Chief  Justice  Holt,  in  that 
case,  as  the  cause  of  his  doubt,  viz.  That  the  moment  a  slave  sets  foot 
in  England  he  becomes  free,  has  no  weight  with  it,'  nor  can  any  reason 
be  found,  why  they  should  not  be  equally  so  when  they  set  foot  in 
Jamaica,  or  any  other  English  plantation.  All  our  colonies  are  subject 
to  the  laws  of  England,  although  as  to  some  purposes  they  have  laws  of 
their  own.  There  was  once  a  doubt,  whether,  if  they  were  christened, 
they  would  not  become  free  by  that  act,  and  there  were  precautions  taken 
in  the  Colonies  to  prevent  their  being  baptised,  till  the  opinion  of  Lord 
Talbot  and  myself,  then  Attorney  General  and  Solicitor  General,  was 
taken  on  that  point.  We  were  both  of  opinion,  that  it  did  not  at  all  alter 
their  state.    There  were  formerly  villains  or  slaves  in  England,  and  those 

'  "See  Contra  Somcrsett  v.  Steicart  Lofft,  p.  1.  8.  C.  20.  Hoiv.  S.  Tr.  1.  See 
Mr.  Hargrave's  argument  in  this  case,  Ffarg.  St.  Tr.  H.  Vol.  339.  Sharley  v. 
Harvey,  2  Eden  126.  See  Williams  v.  Broirn  3  Bos.  rf  P.  69.  See  Lord  Stowell's 
judgment  in  the  matter  of  a  slave  woman  called  Grace,  delivered  in  the  Ad- 
miralty Court,  6  Nov.  1827,  in  which  case  his  Lordship  held,  that  a  slave  re- 
turning to  the  colony  where  she  had  been  in  slavery,  was,  notwithstanding 
her  having  been  born  in  England,  still  liable  to  all  the  disabilities  of  slavery." 
Reporter's  note  to  2d  Edition. 

The  American  student  will  find  the  case  of  Lemnwn  v.  People  (1860)  20 
^^  r.  .562  of  great  interest.  Wm.  M.  Evarts  and  Chas.  O'Connor  appeared 
respectively  for  and  against  the  slave. 


88  HENDERSON  v.  VAULX  [part  i. 

of  two  sorts,  regardant  and  in  gross;  and  although  tenures  are  taken 
away,  there  are  no  laws  that  have  destroyed  servitude  absolutely.  Trover 
might  have  been  brought  for  a  villain.  If  a  man  was  to  come  into  a 
court  of  record  and  confess  himself  villain  to  another  (which  was  one 
way  of  being  a  villain),  what  the  consequence  would  be  I  will  not  say,, 
but  there  is  no  law  to  abolish  it  at  this  time. 

As  to  the  merits,  a  specific  delivery  of  the  Negroes  is  prayed;  but  that 
is  not  necessary,  others  are  as  good;  indeed  in  the  case  of  a  cherry-stone, 
very  finely  engraved,  and  likewise  of  an  extraordinary  wrought  piece  of 
plate,  for  the  specific  delivery  of  which  bills  were  brought  in  this  Court, 
they  could  not  be  satisfied  any  other  way;  their  value  arose  on  circum- 
stances peculiar  to  themselves :  but  in  others,  as  diamonds,  one  may  be 
as  good  as  another.  The  Negroes  cannot  be  delivered  in  the  plight  in 
^  which  they  were  at  the  time  of  the  demand,  for  they  wear  out  with 

labour,  as  cattle  or  other  things ;  nor  could  they  be  delivered  on  demand, 
for  they  are  like  stock  on  a  farm,  the  occupier  could  not  do  without  them,, 
but  would  be  obliged,  in  case  of  a  sudden  delivery,  to  quit  the  plantation. 
The  person  of  the  defendant  is  amenable,  for  he  is  a  native  of 
Antigua;  he  is  going  to  Antigua;  his  effects,  and  likewise  the  Negroes, 
are  there,  and  have  been  used  in  that  place.  It  is  a  colony  subject  to 
England,  and  the  plaintiff  may  have  justice  done  him  in  the  Courts 
there. 


^J 


Henderson  v.  Vaulx  (1836)  10  Yerger  (18  Tenn.)  29,  37.— Eeese,  J.— 
^^^T'lt  is  but  recently,  in  this  state  at  least,  that  the  peculiar  nature  and  char- 
S^v  acter  of  slave  property,  and  of  the  relation  between  master  and  slave,  have 
\  ^-^been  regarded  in  our  courts  in  the  spirit  of  a  rational  and  humane  philos- 
X^^ophy.  A  few  years  ago,  and  any  man  who  had  a  judgment  debtor,  might 
"  by  virtue  of  an  execution  against  him,  become  the  owner  of  the  slave  of  a 
third  party,  if  he  chose  in  a  suit  at  common  law,  to  pay  the  value  or 
more  than  the  value.  A  court  of  chancery,  if  the  owners  had  there  sought 
to  restrain  the  bill,  or  recover  the  possession,  closed  its  doors  upon  him, 
with  the  information  given  him,  that  he  had  a  clear  and  unembarrassed 
remedy  at  law.  Afterwards  it  was  discovered  as  wines,  family  pictures 
and  plate,  and  ornamental  trees.  &c.  were  protected  to  the  owner  in  a 
court  of  chancery  against  trespass,  so  might  a  slave,  if  a  family  slave, 
and  a  peculiar  favorite  with  his  master.  But  recently,  upon  grounds  less 
technical  and  far  higher  and  sounder,  it  has  been  determined  that  a 
court  of  chancery  will  protect  the  possession  and  enjoyment  of  this 
peculiar  property,  a  property  in  intellectual  and  moral  and  social  quali- 
ties, in  sltill,  in  fidelity  and  in  gratitude,  as  well  as  in  their  capacity  for 
labor;  and  any  owner  may  now  say  and  show  to  a  court  of  chancery,  I 
am  inastor,  tliis  is  my  slave,  and  he  shall  retain  or  recover  the  pos- 
session. These  principles,  founded  ujion  tiie  nature  of  the  property, 
will  necessarily  embrace  the  rights  and  liabilities  affecting  the  present 


CHAP.  HI.]  HENDERSON  v.  VAULX  89 

and  future  owners,  the  party  in  possession  and  the  party  in  remainder. 
The  remainder  man  is  owner,  and  entitled  to  be  secured  in  the  specific 
slaves  and  their  increase,  and  not  merely  in  their  value,  or  even  more 
than  their  value.  If  the  owner  for  life  may  remove  with  the  negroes  to 
Mississippi  or  Louisiana,  how  is  the  remainder  to  be  secured?  It  is  an- 
swered, by  a  bond  with  security  here,  to  have  the  negroes  forthcoming 
at  the  death  of  the  remainder  man.  Without  urging  how  precarious  such 
security  would  be,  after  the  lapse  of  some  twenty  or  thirty  years,  by  the 
death  of  sureties,  the  operation  of  our  statutes  of  descents  and  distribu- 
tions, and  the  commercial  and  ever  changing  character  of  our  country; 
without  insisting  how  improbable  it  would  be  that  those  in  remainder 
would  get  any  available  remedy  upon  the  bonds,  let  us  suppose  that  in 
this  case  a  bond  with  ample  security  shall  be  taken,  that  the  defendant, 
his  wife,  and  his  negroes  go  to  his  farm  in  Mississippi,  and  that  contrary 
to  the  probability  of  the  case,  the  wife  dies  in  a  short  time,  while  the 
sureties  are  yet  good.  The  complainants  want  the  negroes  specifically, 
they  are  favorite  negroes,  family  negroes,  at  all  events  they  wish  the 
possession  of  them,  how  should  they  recover  it  ?  They  can  only  sue  upon 
the  bond.  In  that  bond  they  will  not  recover  the  negroes,  but  their  value 
here,  or  their  value  in  Mississippi,  but  probably  the  former;  but  suppose 
the  latter,  the  defendants  in  exoneration  of  his  sureties  pays  the  money 
here,  as  he,  needing  the  negroes  would  be  sure  to  do,  and  then  the  matter 
ends  in  a  compulsory  sale  through  the  agency  of  this  court,  and  a  court 
of  law.  If  complainants  sue  in  Mississippi  will  they  recover  the  negroes 
specifically;  we  know  not  their  system  of  laws.  This  single  view  of  the 
subject  seems  to  be  decisive.  When  the  negroes  leave  this  state  and  go 
beyond  the  jurisdiction  of  its  laws,  we  have  no  further  control  over  them; 
they  may  be  hired,  sold,  emancipated,  and  dispersed  through  every  slave- 
holding  or  non-slaveholding  state  in  the  Union,  or  out  of  the  Union. 
And  if,  as  matter  of  right  the  life  estate  owner  can  give  the  bonds  and 
go  where  he  pleases  with  the  negroes,  for  it  results  in  that,  if  he  remove 
where  we  direct  or  permit  him,  he  may  afterwards  remove  a  dozen-times ; 
if  he  can  do  this  of  right,  then  every  owner  of  a  life  estate  can,  by  giving 
bond,  compel  those  in  remainder  hereafter  to  receive,  if  they  can  recover 
indeed,  the  money  value  of  their  negroes.  There  are  many  other  views 
leading  to  the  same  results.  Our  state  constitution  prohibits  the  emanci- 
pation without  compensation  to  the  owner.  If  the  negroes  are  taken  to  a 
state  where  the  fundamental  law  differs,  the  title  is  less  secure.  The 
complainants  are  members  of  this  political  community,  and  have  a  voice 
in  the  formation  of  its  laws :  if  removed,  their  slaves  would  be  under  a 
system  of  laws ;  in  the  formation  of  which  they  would  have  no  voice.  Wa 
have  a  mild  penal  code,  as  regards  slaves,  as  well  as  others;  they 
might  be  taken  where  this  would  be  otherwise.  We  have  a  much  greater 
portion  of  free  than  of  -slave  population ;  and  the  slave,  without  severity, 
is  kept  in  a  due  and  safe  subordination;  they  might  be  taken  where  the 
proportion  is  the  other  way,  and  where  weakness  on  one  side  and  rashness 


90  McGOWIN  V.  EEMINGTON  [part  i. 

on  the  other,  might  lead  to  insurrection  and  consequent  destruction  of 
the  slave.  Here  there  is  a  liberal  philanthropy  and  protective  public 
sentiment  to  the  slave — there  it  might  be  otherwise.  Here  the  annual 
profit  of  the  slave's  labor  bears  no  very  large  proportion  to  his  own  value, 
and  of  course  interest  is  on  the  side  of  humanity,  and  he  may  not  be  over- 
worked— there  the  annual  profit  may  be  one  third  of  his  entire  value,  and 
the  temptation  would  be  to  overwork  him.  Here  the  moderate  annual 
profit  of  the  slave's  labor  makes  an  increase  of  the  stock  an  object,  and 
mothers  and  children  are  tenderly  treated — there  a  difl^erent  state  of 
things  may  produce  a  different  feeling  and  a  different  course.  Here  we 
have  a  temperate,  healthful  climate — there  the  climate  may  be  less  favor- 
able to  life.  Here,  those  in  remainder  could  know  the  state  and  condi- 
tion of  the  property,  ascertain  whether  it  was  humanely  or  cruelly  treated, 
be  informed  of  its  increase,  i)reserve  the  evidences  of  its  identity,  and 
their  ownership — there,  unless  they  should  remove  thither,  they  would 
be  ignorant  of  all  these  subjects,  and  that  ignorance  would  peril  their 
title  and  interest  in  the  property.' 


McGOWIN  V.  REMINGTON. 
In  the  Supreme  Court  of  Pennsi  lvaxia,  1849. 

[12  Peiuisylvania  State  56.] 

The  complainant's  bill  alleged  that  he  was  formerly  a  surveyor  in  the 
City  of  Pittsburg;  that  he  deposited  with  the  defendant,  a  trusted  em- 
ployee, certain  surveyor's  maps,  charts,  and  instruments,  with  the  under- 
standing that  the  defendant,  who  contemplated  taking  up  the  business 
of  surveying  and  whom  the  complainant  desired  to  help  in  so  doing, 
should  use  the  same  and  then  return  them  to  the  complainant  on  his  de- 
mand, the  latter  intending  to  resume  his  business  of  surveyor  at  some 
future,  time.  The  complainant  after  some  time  demanded  from  the  de- 
fendant the  loaned  maps,  charts,  and  instruments.  The  defendant  re- 
fused to  return  them,  asserting  that  there  were  some  which  he  could  not 
do  without.  The  bill  then  prayed  that  the  defendant  McGowin  be  de- 
creed to  deliver  up  to  the  complainant  the  said  plots.  &c.,  and  any  copies 
thereof  made  since  demand,  and  further  prayed  an  injunction  to  restrain 
McGowin  from  copying,  and  from  destroying,  or  injuring,  or  secreting 
said  plots,  <S:r'." 

The  opinion  of  this  Court  was  delivered  by 

Br.M.,  J. — The  defendant  having  failed  to  sustain,  by  ^roof,  his  alle- 

*  T!io  same  subject  is  well  discuascrl  in  an  earlier  decision  in  the  same  court, 
by  Carton,  Ch.  J.,  in  Loftin  v.  E.fpy  (18.S3)  4  Ycrpcr  (12  Tcnn.)  84.  In 
Pomeroy's  Specific  Performance  of  Contracts  §12,  will  be  found  collected  a  great 
number  of  cases  involving  the  same  question. 

^  The  statement  of  facts  has  been  abridged. 


CHAP.  III.]  McGOWIN  V.  REMINGTON  91 

gation  of  sale  or  gift  of  tlie  articles  sought  to  be  recovered  by  this  bill, 
the  contest  in  this  Court  is  reduced  to  two  questions:  first,  whether  the 
bill  presents  sufficient  grounds  to  warrant  the  interference  of  a  Court  of 
Equity,  in  this  state,  under  the  statute  conferring  equitable  jurisdiction? 
Secondly,  whether  that  portion  of  the  decree  which  covers  the  survey- 
ing instruments  and  furniture  described  in  the  exhibits  annexed  to  the 
bill  can  bo  sustained  ? 

As  to  the  first  point:  the  defendant  insists  that  the  only  remedy  is  at 
law.  Though  the  action  of  replevin  is,  with  us,  a  broader  remedy  than 
in  England,  lying  in  all  cases  where  one  man  improperly  detains  the 
goods  of  another,  it  is  in  no  instance  effective  to  enforce  a  specific  return 
of  chattels,  since  a  claim  of  property  and  bond  given  is  always  sufficient 
to  defeat  reclamation,  no  matter  what  may  be  the  eventual  issue  of  the 
contest.  As,  therefore,  our  common-law  tribunals  are  as  powerless  for 
such  a  purpose,  as  the  similar  English  Courts,  the  propriety  of  exerting 
the  equitable  jurisdiction  now  invoked  must  depend  with  us  on  the  same 
reasons  that  are  deemed  sufficient  to  call  it  into  action  there.  Here,  as 
there,  the  inquiry  must  be  whether  the  law  affords  adequate  redress  by  a 
compensation  in  damages,  where  the  complaint  is  of  the  detention 
of  personal  chattels.  If  not,  the  aid  of  a  Court  of  Chancery  will  always 
be  extended  to  remedy  the  injury,  by  decreeing  a  return  of  the  thing 
itself. 

The  precise  ground  of  this  jurisdiction  is  said  to  be  the  same  as  that 
upon  which  the  specific  performance  of  an  agreement  is  enforced, 
namely,  that  fruition  of  the  thing,  the  subject  of  the  agreement,  is  the 
object,  the  failure  of  which  would  be  but  illy  supplied  by  an  award  of 
damages:  Lowther  v.  Lowther,  13  Ves.  389.  In  the  application  of  this 
rule  some  difficulty  has  been  experienced.  The  examples  afforded  by  the 
English  books  are  usually  those  cases,  where,  from  the  nature  of  the 
thing  sought  after,  its  antiquity,  or  because  of  some  peculiarity  con- 
nected with  it,  it  cannot  easily,  or  at  all,  be  replaced.  Of  these  may  be 
instanced,  the  title-deeds  of  an  estate  and  other  muniments  of  property; 
valuable  paintings:  Lowther  v.  Lowther,  supra;  an  antique  silver  altar- 
piece:  Duke  of  Somerset  v.  Cookson,  3  P.  Wms.  389;  an  ancient  horn, 
the  symbol  of  tenure,  by  which  an  estate  is  held :  Pusey  v.  Pusey,  1  Yes. 
273;  heir-looms:  3  Ves.  &  B.  18;  and  even  a  finely  carved  cherry-stone: 
Ambler,  77.  Such  articles  as  these  are  commonly  esteemed  not  alto- 
gether, or  perhaps  at  all,  for  their  intrinsic  value,  but  as  being  objects 
of  attachment  or  curiosity,  and,  therefore,  not  to  be  measured  in  damages 
by  a  jury,  who  cannot  enter  into  the  feelings  of  the  owner ;  so  too  the  im- 
possibility, or  even  great  difficulty  of  supplying  their  loss,  may  put  dam- 
ages out  of  the  question  as  a  medium  of  redress.  But  these  are  not  the 
exclusive  reasons  why  Chancery  interferes,  for  there  may  be  cases  in 
■which  the  thing  sougtit  to  be  recovered  is  susceptible  of  reproduction  or 
substitution,  and  yet  where  damages  could  not  be  so  estimated  as  to  cover 
present  loss  or  compensate  its  future  consequent  inconvenience.     And 


92  McGOWlN   V.  REMINGTON  [part  k 

I  take  it  this  is  always  so,  where,  from  the  nature  of  the  subject  or  the 
immediate  object  of  the  parties,  no  convenient  measure  of  damages  can 
be  ascertained;  or,  wliere  nothing  could  answer  the  justice  of  the  case 
but  the  performance  of  a  contract  in  specie.  Of  this  Buxton  v.  Lister^ 
3  Atk.  384,  furnishes  an  example  in  the  analogous  instance  of  a  contract 
for  the  sale  of  personalty ;  contracts,  which  are  most  commonly  left  to 
be  dealt  with  at  law.  It  was  a  bill  to  enforce  the  performance  of  an 
agreement  for  the  purchase  of  several  large  parcels  of  growing  wood,  to 
be  severed  by  the  defendants,  who  were  to  have  eight  years  to  dispose  of 
it  and  to  pay  for  it,  in  six  yearly  instalments.  Lord  Hardwicke  was,  at 
.fii'st,  extremely  reluctant  to  entertain  the  bill,  but  after  discussion  came 
to  the  conclusion,  that,  though  relating  to  a  personal  chattel,  it  was  such 
an  agreement  that  the  plaintiff  might  come  into  Chancery  for  a  specific 
performance.  He  instanced  the  case  of  Taylor  v.  Neville,  which  was  a 
bill  for  the  performance  of  articles  for  the  sale  of  eight  hundred  tons  of 
iron,  to  be  paid  for  in  a  certain  number  of  years,  by  instalments,  where 
the  decree  prayed  for  was  made ;  and  proceeded  to  observe — "such  sort 
of  contracts  as  these,  differ  from  those  that  are  immediately  to  be  ex- 
ecuted. There  are  several  circumstances  which  may  concur.  A  man 
may  contract  for  the  purchase  of  a  great  quantity  of  timber,  as  a  ship- 
carpenter,  by  reason  of  the  vicinity  of  the  timber;  and  this  is  on  the 
part  of  the  buyer.  On  the  part  of  the  seller,  suppose  a  man  wants  to 
clear  his  land  in  order  to  turn  it  to  a  particular  sort  of  husbandry;  there 
nothing  can  answer  the  justice  of  the  case  but  the  performance  of  the 
contract  in  specie."  Similar  in  principle  is  the  case  of  Falls  v.  Reid, 
13  Yes.  70,  where  the  plaintiffs  prayed  the  restoration  of  an  engraved 
silver  snuff-box,  used  for  many  years  by  a  society,  as  the  symbol  of  their 
association ;  and  Nutbrown  v.  Thomson,  where  a  tenant  brought  a  bill 
against  his  lessor,  who,  under  pretence  of  the  tenant's  covenant,  had  re- 
possessed himself  of  the  land,  and  seized  upon  the  stock  and  cattle,  which 
by  the  lease  the  tenant  was  to  enjoy  for  seven  years.  The  objection  was 
that  the  tenant's  remedy,  if  he  was  entitled  to  one  at  all,  was  at  law,  in 
damages.  But  how,  asked  Lord  Eldon,  are  damages  to  be  estimated  in 
such  a  case?  The  direction  to  a  jury  must  be  to  give,  not  the  value  of 
the  chattels,  but  their  value  to  the  tenant !  A  similar  question  may 
well  be  propounded  in  our  case.  By  what  standard  would  you  measure 
the  injury  the  plaintiff  may  sustain  in  future  from  being  deprived,  even 
for  a  brief  period,  of  the  use  of  papers  essential  to  the  prosecution  of  his 
business?  Their  intrinsic  value  might,  perhaps,  be  ascertained  by  an 
estimate  of  the  labour  necessary  to  their  reproduction,  admitting  the 
means  to  be  at  hand,  and  within  the  power  of  the  plaintiff.  But  how 
could  a  tribunal  ascertain  the  probable  loss  which,  in  the  mean  time,  c, 
might  be  sustained  ?  The  present  pecuniary  injury  might  be  little  ot^" 
nothing,  and  so  possibly  of  the  future;  or  it  might  be  very  great,  de-^ 
ponding  ux)on  the  unascertainable  events  of  coming  time,  as  these  may 
be  influenced  by  the  misconduct  of  the  defendant.    These  considerations- 


CHAP.  III.]  McGOWIN  V.  REMINGTON  93 

show,  I  think,  the  case  is  not  one  for  damages.  Besides,  as  many  of  the 
maps,  plans,  surveys,  and  calculations  are  said  to  be  copies  of  private 
papers,  we  are  by  no  means  satisfied  they  could  be  replaced  at  all.  Cer- 
tainly not  without  permission  of  the  owners;  a  risk  to  which  the  plain- 
titf  ought  not  unnecessarily  to  be  exposed.  If  to  these  reflections  we  add 
the  fact  that  some  of  these  documents  are  the  original  work  of  the  plain- 
tiff, of  value  as  being  predicated  upon  data  possibly  no  longer  accessible, 
a  wrong  is  perpetrated  which  a  chancellor  ought  not  to  hesitate  in  re- 
lieving. It  is  enough  for  this  purpose,  that  a  perfect  relief  at  law  is  not 
apparent.  The  thing  to  be  guarded  against  is,  not  the  invasion  of  defend- 
ant's rights,  for  he  stands  here  absolutely  without  any,  except  the 
common  interest  every  citizen  has  in  preserving  the  proper  line  of  dis- 
tinction that  divides  the  jurisdiction  and  limits  the  powers  of  the  several 
Courts.  What  is  to  be  avoided  is  an  unnecessary  trespass  upon  the 
province  of  the  common-law  tribunals,  and  this  is  to  be  tested  by  the 
simple  query  whether  they  offer  a  full  remedy  for  the  wrong  com- 
plained of? 

But  there  is  another  ground  upon  which  this  proceeding  may  be  sus- 
tained. In  Falls  V.  Reid,  the  snuff-box  was  deposited  with  the  defendant, 
as  a  member  of  the  society,  upon  certain  terms,  to  be  redelivered  upon 
the  happening  of  certain  events.  Lord  Rosslyn  held  that  under  these 
facts,  the  defendant  was  a  depositary  on  an  express  trust  which,  upon  a 
common  ground  of  equity,  gave  the  plaintiff  title  to  sue  in  that  Court; 
and  in  this  he  was  supported  by  Lord  Eldon,  in  the  subsequent  case  of 
Nutbrown  v.  Thornton.  According  to  the  proof  in  our  case,  the  papers 
and  documents  claimed  were  left  with  the  defendant  under  the  express 
understanding  that  they  were  to  be  redelivered  whenever  the  plaintiff 
should  see  fit  to  resume  the  business  of  his  then  profession  in  this  city. 
It  is  then  the  case  of  direct  confidence  violated — a  spell  sufficiently 
potent  to  call  into  vigorous  activity  the  authority  invoked. 

As  to  the  second  question,  it  is  perhaps  enough  to  say,  that  when  once 
a  Court  of  equity  takes  cognizance  of  a  litigation,  it  will  dispose  of  every 
subject  embraced  within  the  circle  of  contest,  whether  the  question  be  of 
remedy  or  of  distinct  yet  connected  topics  of  dispute.  If  the  jurisdiction 
once  attaches  from  the  nature  of  one  of  the  subjects  of  contest,  it  may 
embrace  all  of  them,  for  equity  abhors  multiplicity  of  suits.  Thus  in 
the  case  last  cited,  the  Chancellor  ruled  that  where  a  person  is  found 
wrongfully  in  possession  of  a  farm,  over  which  the  Court  had  undoubted 
power,  and  also  in  possession  of  the  stock  upon  it,  at  the  same  time  and 
Tmder  the  effect  of  the  same  wrong,  the  Court  will  undoubtedly  make 
him  account  for  and  deliver  back  the  whole.  In  the  case  at  bar  the  sur- 
veying instruments  and  office  furniture  stand  in  the  same  category  with 
the  maps,  drafts,  iSic. ;  were  delivered  to  the  defendant  at  the  same  time, 
and  are  withheld  by  ao  exertion  of  the  same  wrong.  In  short,  they  enter 
into  and  make  part  of  the  same  transaction,  and  may,  therefore,  be  the 
objects  of  the  same  measure  of  redress.  Decree  affirmed. 


94  WHEELOCK  v.  NOONAN         [part  k 


WHEELOCK  V.  NOONAN. 

In  the  Court  of  Appeals  of  New  York,  1888. 

[lOS  New  York  179.] 

Appeal  from  judgment  of  the  General  Term  of  the  Superior  Court  of 
the  city  of  New  York,  entered  upon  an  order  made  May  6,  18S6,  which 
affirmed  a  judgment  in  favor  of  plaintiff  entered  upon  a  decision  of  the 
court  on  trial  at  Special  Term.    Reported  below,  21  J.  &  S.  28G. 

This  action  was  brought  to  compel  defendant  to  remove  from  certain 
lots  belonging  to  plaintiff,  situate  in  the  city  of  New  York,  a  quantity 
of  rocks  or  boulders  placed  thereon  by  defendant. 

The  material  facts  are  stated  in  the  opinion. 

Finch,  J.'  The  findings  of  the  trial  court  establish  that  the  defendant, 
who  was  a  total  stranger  to  the  plaintiff,  obtained  from  the  latter  a 
license  to  place  upon  his  unoccupied  lots  in  the  upper  part  of  the  city  of 
New  York  a  few  rocks  for  a  short  time,  the  indefiniteness  of  the  period 
having  been  rendered  definite  by  the  defendant's  assurance  that  he  would 
remove  them  in  the  spring.  Nothing  was  paid  or  asked  for  this  permis- 
sion and  it  was  not  a  contract  in  any  just  sense  of  the  term,  but  merely 
a  license  which  by  its  terms  expired  in  the  next  spring.  During  the 
winter,  and  in  the  absence  and  without  the  knowledge  of  plaintiff,  the 
defendant  covered  six  of  the  lots  of  plaintiff  with  "huge  quantities  of 
rock,"  some  of  them  ten  or  fifteen  feet  long,  and  piled  to  the  height  of 
fourteen  to  eighteen  feet.  This  conduct  was  a  clear  abuse  of  the  license 
and  in  excess  of  its  terms,  and  so  much  so  that  if  permission  had  been 
sought  upon  a  truthful  statement  of  the  intention  it  would  undoubtedly 
have  been  refused.  In  the  spring  the  plaintiff,  discovering  the  abuse  of 
his  permission,  complained  bitterly  of  defendant's  conduct  and  ordered 
him  to  remove  the  rocks  to  some  other  locality.  The  defendant  promised 
to  do  so,  but  did  not,  and  in  the  face  of  repeated  demands  has  neglected 
and  omitted  to  remove  the  rocks  from  the  land. 

The  court  found  as  matter  of  law  from  these  facts  that  the  original 
permission  given  did  not  justify  what  was  done  either  as  it  respected  the 
quantity  of  rock  or  the  time  allowed ;  that  after  the  withdrawal  of  the 
permission  in  the  spring  and  the  demand  for  the  removal  of  the  rock 
the  defendant  was  a  trespasser,  and  the  trespass  was  a  continuing  one 

*  This  learned  Judge,  like  his  eonteniporary  Btnven  on  the  other  side  of  the 
water,  cultivated  literature  on  the  hencli  and  expressed  himself  in  an  English 
of  purity,  delicaey  and  foree.  While  literature  and  law  arc  so  constantly 
divorced,  it  is  agreeal)le  betimes  to  clirnnielc  their  union.  R,  will  doubtless 
please  the  student  to  learn  that  Judge  Finch  is  the  author  of  "The  Blue  and 
the  Gray";  and  that  he  was  for  many  years  Dean  of  the  College  of  Law  of 
Cornell    University. 


CHAP.  III.]  WHEELOCK  v.  NOONAN  95 

whicli  entitled  plaintiff  to  equitable  relief;  and  awarded  judgment  re- 
quiring defendant  to  remove  the  rocks  before  !March  15,  1886,  unless 
for  good  cause  shown  the  time  for  such  removal  should  be  extended  by 
the  court.  The  sole  question  upon  this  appeal  is  whether  the  relief 
granted  was  within  the  power  of  the  court,  and  the  contention  of  the  de- 
fendant is  mainly  based  upon  the  proposition  that  the  equitable  relief 
was  improper  since  there  was  an  adequate  remedy  at  law.  The  plaintiff 
objects  that  no  such  defense  was  pleaded.  If  it  arises  upon  the  facts 
stated  in  the  complaint,  it  can  scarcely  be  said  to  be  new  matter  required 
to  be  stated  in  the  answer,  and  I  doubt  whether  under  the  present  system 
of  pleading  the  technical  objection  in  such  case  is  good.  It  is  better, 
therefore,  to  consider  the  defense  which  is  interposed. 

One  who  would  justify  under  a  license  or  permission  must  bring  his 
acts  within  the  terms  of  the  license.  He  exceeds  them  at  his  peril. 
There  is  no  equity  in  allowing  him  to  strain  them  beyond  their  fair  and 
reasonable  interpretation.  The  finding  shows  permission  asked  for  "a 
few  stone,"  described  as  "a  portion"  of  what  defendant  was  getting 
from  the  boulevard.  The  plaintiff  was  justified  in  inferring  that  for  the 
bulk  of  his  stone  the  defendant  had  a  place  of  deposit  and  only  wanted 
additional  room  for  a  small  excess,  for  a  few  stone.  Under  this  permis- 
sion defendant  was  not  justified  in  covering  six  lots  with  heavy  boulders 
to  a  height  of  fourteen  to  eighteen  feet.  The  thing  done  was  gravely 
and  substantially  in  excess  of  the  thing  granted,  and  the  license  averred 
does  not  cover  or  excuse  the  act.  Beyond  that  the  permission  extended 
only  to  the  spring  of  1S80  and  expired  at  that  date.  The  immediate  re- 
moval of  the  stone  was  then  demanded,  and  from  that  moment  its  pres- 
ence upon  plaintiff's  lands  became  a  trespass,  for  which  there  was  na 
longer  license  or  permission.  Such  parol  license,  founded  upon  no  con- 
sideration, is  revocable  at  pleasure,  even  though  the  licensee  may  have 
expended  money  on  the  faith  of  it.  Murdock  v.  Pros.  Park  &  Coney  I. 
R.  R.  Co.,  73  N.  y.  579.  And  this  was  a  continuing  trespass.  So  long 
as  it  lasted  it  incumbered  the  lots,  prevented  their  use  and  occupation 
by  the  owner,  and  interfered  with  the  possibility  of  a  sale. 

It  is  now  said  that  the  remedy  was  at  law;  that  the  owner  could  have 
removed  the  stone  and  then  recovered  of  the  defendant  for  the  expense 
incurred.  But  to  what  locality  could  the  owner  remove  them?  He  could 
not  put  them  in  the  street;  the  defendant  presumably  had  no  vacant 
lands  of  his  own  on  which  to  throw  the  burden ;  and  it  would  follow  that 
the  owner  would  be  obliged  to  hire  some  vacant  lot  or  place  of  deposit, 
become  responsible  for  the  rent,  and  advance  the  cost  of  men  and  ma- 
chinery to  effect  the  removal.  If  any  adjudication  can  be  found  throwing 
such  burden  upon  the  owner,  compelling  him  to  do  in  advance  for  the 
trespasser  what  the  latter  is  bound  to  do,  I  should  very  much  doubt  its 
authority.  On  the  contrary,  the  law  is  the  other  way.  Beach  v.  Crane, 
2  N.  Y.  86,  97.  And  all  the  eases  which  give  to  the  injured  party  suc- 
cessive actions  for  the  continuance  of  the  wrongs  are  inconsistent  with 


96  WHEELOCK  v.  NOONAN  [part  r. 

the  idea  that  the  injured  party  must  once  for  all  remove  it.  Such  is 
neither  an  adequate  remedy  nor  one  which  the  plaintiff  was  bound  to 
adopt. 

But  it  is  further  said  that  he  could  sue  at  law  for  the  trespass.  That 
is  undoubtedly  true.  The  case  of  Uline  v.  New  York  Central  and  Hud- 
son River  Railroad  Company,  101  N.  Y.  98,  demonstrates  upon  abundant 
authority  that  in  such  action  only  the  damages  to  its  date  could  be  re- 
covered, and  for  the  subsequent  continuance  of  the  trespass,  new  actions 
following  on  in  succession  would  have  to  be  maintained.  But  in  a  case 
like  the  present  would  that  be  an  adequate  remedy?  In  each  action  the 
damages  could  not  easily  be  anything  more  than  the  fair  rental  value  of 
the  lot.  It  is  diiEcult  to  see  what  other  damages  could  be  allowed,  not 
because  they  would  not  exist,  but  because  they  would  be  quite  uncertain 
in  amount  and  possibly  somewhat  speculative  in  their  character.  The 
defendant,  therefore,  might  pay  those  damages  and  continue  his  occupa- 
tion, and,  if  there  were  no  other  adequate  remedy,  defiantly  continue 
such  occupation,  and,  in  spite  of  his  wrong,  make  of  himself,  in  effect,  a 
tenant  who  could  not  be  dispossessed.  The  wrong  in  every  such  case  is 
a  continued  unlawful  occupation,  and  any  remedy  which  does  not  or  may 
not  end  it,  is  not  adequate  to  redress  the  injury,  or  restore  the  injured 
party  to  his  rights.  On  the  other  hand,  such  remedy  in  a  case  like  the 
present  might  result  to  the  wrong-doer  in  something  nearly  akin  to  per- 
secution. He  is  liable  to  be  sued  every  day,  die  de  diem,  for  the  renewed 
damages  flowing  from  the  continuance  of  the  trespass;  and  while  ordi- 
narily there  is  no  sympathy  to  be  wasted  on  a  trespasser,  yet  such  multi- 
plicity of  suits  should  be  avoided  and  especially  under  circumstances 
like  those  before  us.  The  rocks  could  not  be  immediately  removed.  The 
court  have  observed  float  pecidiarity  of  the  case  and  shaped  their  judg- 
ment to  give  time.  It  may  take  a  long  time,  and  during  the  whole  of  it 
the  defendant  would  be  liable  to  daily  actions. 

For  reasons  of  this  character  it  has  very  often  been  held  that  while 
ordinarily  courts  of  equity  will  not  wield  their  power  merely  to  redress 
a  trespass,  yet  they  will  interfere  imder  peculiar  circumstances,  and  have 
often  done  so  where  the  trespass  was  a  continuing  one,  and  a  multi- 
plicity of  suits  at  law  was  involved  in  the  legal  remedy.  The  doctrine 
was  recognized  and  the  authorities  cited  in  the  Murdoch  Case  (supra), 
and  the  rule  deemed  perfectly  settled. 

That  case,  and  those  referred  to,  it  is  true,  were  cases  of  intrusion 
where  no  consent  had  been  given  for  the  entry  of  the  intruder,  but 
whether  the  trespass  was  such  from  the  beginning,  or  became  one  after 
a  revocation  of  the  license,  can  make  no  difference  as  it  respects  the 
adequacy  of  the  legal  remedy.  That  is  the  same  in  either  event.  Two 
cases  of  the  former  character  were  cited  in  the  Inline  Case.  Bowyer  v. 
Cook,  4  M.  G.  &  S.  2^0;  Holmes  v.  Wilson,  10  A.  &  E.  503.  In  one, 
stumps  and  stakes  had  been  left  on  plaintiff's  land,  and  in  the  other  but- 
tresses to  support  a  road ;  in  each  an  action  of  trespass  had  been  brought 


CHAP.  III.]  AGNES  BALES'  CASE  97 

and  damages  recovered  and  paid;  and  in  each,  after  a  new  notice  to 
remove  the  obstruction,  a  further  action  of  trespass  was  brought  and 
sustained.  So  that,  as  1  have  said,  the  legal  remedy  is  identical,  however 
the  trespass  originated. 

It  is  a  general  rule  that  a  court  of  equity  will  act  in  such  cases  only 
after  the  plaintiff's  right  has  been  established  at  law,  but  that  rule  has 
its  exceptions.  T.  &  B.  R.  E.  Co.  v.  B.  &.  H.  T.  R.  P..  Co.,  8G  N.  Y.  128. 
Where  the  facts  are  in  doubt,  and  the  right  not  clear,  such  undoubtedly 
would  be  a  just  basis  of  decision,  though  the  modern  system  of  trying 
equity  cases  makes  the  rule  less  important.  Where,  as  in  an  intrusion  by 
railroad  companies  whose  occupation  threatens  to  be  continuous,  the 
injury  partakes  of  that  character,  an  action  at  law  to  establish  the  right 
has  not  been  required.  Indeed,  I  am  inclined  to  deem  it  more  a  rule  of 
discretion  than  of  jurisdiction. 

In  Avery  v.  New  York  Central  and  Hudson  River  Railroad  Company, 
106  N.  Y.  142,  to  which  we  have  been  referred  since  the  argument,  we 
were  disposed  to  sustain  a  mandatory  injunction  requiring  defendant  to 
remove  so  much  of  a  fence  as  obstructed  plaintiff's  right  of  way,  al- 
though the  obstruction  was  not  a  nuisance,  but  an  invasion  of  a  private 
right.  In  that  case  the  equitable  remedy  was  not  'challenged  by  either 
counsel  or  the  court,  and  evidently  stood  upon  the  grounds  here  invoked ; 
those  of  a  continuing  trespass  the  remedy  for  which  at  law  would 
be  inadequate,  and  involve  repeated  actions  by  the  injured  party  for 
damages  daily  occurring. 

Those  views  of  the  case  enable  us  to  support  the  judgment  rendered. 
It  should  be  affirmed,  with  costs. 

All  concur,  except  Ruger,  Ch.  J.,  not  voting. 

Judgment  affirmed. 


B.    Impracticahility  of  Legal  Remedy. 

AGNES  BALES'  CASE. 

In  Chancery,  Circa  1394. 

[Select  Cases  in  Chancery,  10  Selden  Society,  No.  73.]  ' 

To  the  most  reverend  Father  in  God,  and  his  most  gracious  Lord,  the 
Bishop  of  Exeter,  Chancellor  of  England,* 

Most  humbly  beseecheth  your  poor  oratrix  Agnes,  widow  of  Richard 
Bales,  that  whereas  she  of  late  purposed  to  have  crossed  the  sea  to  the 
parts  of  Friesland  to  her  said  husband,  who  was  then  there,  when  he 
lived  in  the  port  of  Chichester,  at  which  place  [Chichester]  the  said 
Agnes  was  prevented  of  her  said  passage,  and  all  her  goods  there  found, 

^  Early  Chancery  proceedings.  Bundle  3,  No.  71. 
-  Edmund  de  Stafford. 


98  SIMON  BRIT'S  CASE  [part  i. 

to  the  value  of  £40,  as  in  a  schedule  made  thereof  and  ready  to  be  shown 
is  more  fully  contained,  were  arrested  because  she  had  not  then  a  writ 
of  passage;  and  the  same  goods,  so  there  arrested  by  Thomas  Hyne  and 
William  Farnehirst  of  the  same  town,  were  sent  by  them  to  Sir  Thomas 
Frie,  Vicar  of  West  Wittering,  to  be  safely  kept  to  the  use  of  the  said 
suppliant,  as  by  evidential  letters  made  under  the  seals  of  the  said 
Thomas  Hyne  and  William  and  other  people  of  the  said  town  more  fully 
appeareth;  And  now  the  said  Vicar  hath  carried  away  the  said  goods 
and  will  not  deliver  them  to  the  said  suppliant  as  right  doth  demand, 
but  absenteth  himself  and  departeth  from  place  to  place,  so  that  she 
can  have  no  recovery  nor  remedy  against  him  at  common  law,  nor 
otherwise  unless  she  be  recovered  and  secured  by  your  gracious  aid: 
May  it  please  your  most  gracious  Lordship  to  grant  a  writ  to  cause  to 
come  before  you  as  well  the  said  Thomas  Hyne  and  William,  who  ar- 
rested the  same  goods,  as  the  said  Vicar,  to  whom  they  were  delivered, 
to  answer  as  to  the  goods  and  the  misdeeds  aforesaid;  for  God  and  in 
way  of  charity. 


SIMON  BRIT'S  CASE. 

In  Chancery,  1397, 

\_Select  Cases  in  Chancery,  10  Selden  Society,  No.  21.]  * 

To  the  most  honoured  and  most  gracious  Lord  and  Father  in  God,  the 
Bishop  of  Exeter  and  Chancellor  of  England," 

Humbly  beseecheth  Simon  Brit,  of  the  County  of  Somerset,  that  whereas 
he  was  in  peaceable  possession  of  two  parts  [thirds]  of  the  manor  of 
Huish-Champflower  and  the  advowson  of  the  church  of  the  same  town  in 
the  said  County  until  one  Alice  Colne  brought  an  assize  of  novel  dis- 
seisin against  the  said  Simon;  and,  pending  the  assize,  the  said  Alice 
entered  upon  the  said  manor  by  the  maintenance  and  counsel  of  Sir 
Hugh  Courtenay,  knight,  and  afterwards  Alice  made  feoffment  of  the 
said  manor  to  Sir  Hugh,  and  this  pending  the  assize;  to  the  great 
damage  and  impoverishment  of  the  said  Simon ;  and  Simon  dare  not  sue 
at  common  law  against  Sir  Hugh :  May  it  please  you  of  your  especial 
grace  to  grant  a  writ  directed  to  the  said  Sir  Hugh,  commanding  him  to 
be  before  the  Council  of  our  Lord  the  King  at  a  certain  day  and  under  a 
certain  pain;  for  God  and  in  way  of  charity;  or  otherwise  the  said 
Simon  is  impoverished  and  destroyed  for  ever. 

Indorsed.  At  which  day  the  within  written  Hugh  appeared  in  the 
Chancery,  and  the  said  Simon  Brit,  although  solemnly  called,  did  not 
come;  wherefore  it  was  considered  that  the  said  Hugh  should  go  quit  of 
the  Court. 

'  Early  (Chancery  Proceedings,  Bundle  3,  No.  65. 
'  Edmund  de  StafTord. 


CHAP.  III.]  USQE'S  CASE  99 

USQE'S  CASE. 

In  Chancery,  1397-1401. 

[Select  Cases  in  Chancery,  10  Selden  Society,  No.  31.]  ' 

To  the  most  honourable  and  most  reverend  Father  in  God,  the  Bishop 
of  Exeter,'  Chancellor  of  England, 

Complaineth  his  poor  chaplain,  David  Usqe,  formerly  Vicar  of  the 
church  of  Pawlett  in  the  County  of  Somerset,  that  whereas  one  William 
Bawe,  Parson  of  the  church  of  Greinton  in  the  said  county,  on  the 
Friday  before  the  feast  of  Pentecost  in  the  20th  year  of  our  Lord  King 
Richard  who  now  is  [1397],  with  force  and  arms,  and  six  other  men 
unknown,  his  adherents,  with  him,  fully  arrayed  in  arms  in  warlike 
manner,  came  to  the  said  church  of  Pawlett  when  the  said  David  was 
vested  for  mass,  before  he  had  said  the  Gospel  of  S.  John  which  is  called 
In  principio;  and  in  the  chancel  of  the  said  church  he  commanded  the 
said  David,  who  was  at  his  altar,  vested,  to  take  off  his  vestments  and  to 
speak  with  them ;  the  which  David  answered  and  said  unto  them  that  he 
would  not  take  off  his  vestments  until  he  knew  their  will;  the  which 
William  Bawe  and  the  others  of  his  covin  said  expressly  that  they  would 
cut  off  his  head  if  he  would  not  make  fine  with  them  for  100  marks; 
and  for  fear  of  this  menace,  the  said  David  made  fine  and  ransom  with 
the  said  William  and  his  company  for  £10  sterling  in  order  to  save  his 
life.  And  after  the  said  William  and  his  company  had  ransomed  the 
said  David  in  manner  aforesaid,  the  said  William  and  his  adherents 
made  the  said  David  swear  on  his  priestly  word  to  go  with,  them  out  of 
his  said  church  to  the  town  of  Bridgewater;  and  there  they  forced  him 
to  make  a  bond  to  them  for  £20,  on  condition  to  pay  the  said  £10  on 
Friday  then  next  following;  And  after  the  said  David  had  made  the 
said  bond,  the  said  William  and  his  adherents  compelled  the  said  David 
to  deliver  unto  them,  in  default  of  other  payment,  as  the  price  of  his  said 
ransom,  all  his  sheep,  his  lambs,  his  pigs,  and  his  other  goods,  on  the 
Saturday  in  the  eve  of  Pentecost  following  next  after  the  aforesaid 
Friday;  on  which  day  the  said  William  and  his  company  took  the  goods 
of  the  said  David  and  delivered  up  to  him  his  said  bond.  And  the 
said  sheep,  lambs,  and  other  goods,  they  brought  to  the  house  of  the  said 
William  at  Alverton,  and  they  are  still  there  in  ward,  to  the  great 
destruction  and  annihilation  of  the  plaintiff's  poor  estate,  and  against 
all  law  and  right:  May  it  please  your  most  gracious  Lordship  to  grant 
the  said  David  a  writ  de  quihusdam  certis  de  causis,  to  make  the  said 
William  come  before  you  at  a  certain  day  and  under  a  certain  pain  con- 
tained in  the  writ,  to  make  answer  to  this  bill ;  for  God  and  in  way  of 
charity.     Having  consideration  that  the  said  William  is  so  rich  and  so 

^  Early  Chancery  Proceedings,  Bundle  3,  No.  41. 
'  Edmund  de  Stafford. 


100  CANNEL  V.  BUCKLE  [part  i. 

strong  in  friends  in  the  country  where  he  dwelleth,  that  the  said  David 
will  never  recover  from  him  at  common  law,  if  he  have  not  aid  from 
your  most  gracious  Lordship.' 

A  writ  thereof  was  made  [commanding]  the  said  William  Bawe  to 
be  before  the  King  in  his  Chancery  on  the  quindene  of  Martinmas 
next  to  come. 


BKACEBRIDGE  v.  BRACEBRIDGE. 

In  Chancery,  1582-3. 

[Choyce  Cases  in  Chancery,  159.]^ 

It  was  moved  by  Master  Sollicitor  generall  on  the  Defendant's  behalf, 
that  the  issue  joined  between  the  parties  in  this  Court,  is  only  whether 
the  lands  claimed  by  the  Plaintiif  be  parcell  of  her  dower  recovered 
at  the  Common  Law  or  no,  and  therefore  meetest  to  be  tryed  by  the 
Common  Law;  But  Master  Beaumont  being  for  the  Plaintiff,  alleagedj 
that  albeit  the  Plaintiif  hath  recovered  her  dower  at  Law,  yet  the  defen- 
dant being  of  great  power  in  the  Country,  keeps  her  out  contrary  to  the 
same  recovery:  Therefore  an  Injunction  of  this  Court  is  awarded,  and 
the  matter  by  order  to  be  retained. 


CANNEL  V.  BUCKLE. 
In  Chancery,  before  Lord  Chancellor  Macclesfield,  1724. 

[2  Peere   Williams  243.] 

A  Feme  sole  was  seised  in  fee  of  land  of  about  10 1.  per  annum,  and 
designing  to  marry,  agreed  with  her  intended  husband,  that  she  upon 
the  marriage  would  convey  her  lands  to  the  husband  and  his  heirs;  and 
for  that  purpose,  previous  to  the  marriage,  she  gave  a  bond  of  200 1. 
penalty  to  the  intended  husband,  in  which  the  intended  marriage  was 
recited,  and  the  condition  was,  that  in  case  the  marriage  took  effect,  she 
would  convey  all  her  said  lands  to  the  husband  and  his  heirs. 

The  marriage  took  effect,  and  there  was  issue  of  the  marriage,  and  the 
wife  made  her  will  reciting  her  said  bond,  and  devised  all  her  land  to  her 
husband  in  fee  and  died. 

The  issue  of  the  marriage  died  without  issue;  after  which  the  husband 
enjoyed  the  land  during  his  life,  and  on  his  death  the  heir  of  the 
husband  brought  a  bill  against  the  heir  of  the  wife  to  compel  him  to 
convey  the  lands  of  the  wife  to  the  heir  of  the  husband. 

'  The  reason  for  applyinf};  to  the  Chancellor  appears  sufficiently  from  the  last 
paragraph.     No  doctrine  of  equity  seems  to  be  involved.     I'cporter's  note. 
'■' Froiii  ihc  reprint  of  Stevens  and  Ilavnes   (1870)   from  the  edition  of  1672. 


CHAP.  III.]  GETCIIELL  v.  JEWETT  101 

Ohj.  This  bond  given  by  the  wife  became  void  upon  the  intermar- 
riage, because  it  was  then  suspended ;  and  a  personal  action  once  sus- 
pended is  extinct;  besides,  wherever  no  action  lies  at  law  to  recover  debt 
or  damages,  there  no  suit  in  equity  lies  to  compel  a  specific  performance, 
which  specific  performance  is  given  in  equity  only  in  lieu  of  damages; 
and  1  Chan.  Cases  21,  (lady  Darcy's  case)  was  cited,  proving  that  where 
a  woman  on  a  treaty  of  marriage  agrees  with  a  man,  or  a  man  with  a 
woman,  there    the  subsequent  intermarriage  determines  the  agreement. 

Lord  Chancellor :  The  impropriety  of  the  security,  viz.  a  bond  from 
a  woman  to  a  man  whom  she  intends  to  marry,  or  the  inaccurate  manner 
of  wording  such  bond,  is  not  material ;  for  it  is  sufficient  that  the  bond 
is  a  written  evidence  of  the  agreement  of  the  parties,  that  the  feme  in 
consideration  of  marriage  agrees  the  man  shall  have  the  land  as  her 
portion ;  and  this  agreement  being  upon  a  valuable  consideration  shall  be 
executed  in  equity.  It  is  unreasonable  that  the  intermarriage,  upon 
which  alone  the  bond  is  to  take  effect,  should  itself  be  a  destruction  of 
the  bond,  and  the  foundation  of  that  notion  is  that  in  law  the  husband 
and  wife  being  one  person,  the  husband  cannot  sue  the  w'ife  on  this 
agreement;  whereas  in  equity  it  is  constant  experience,  that  the  husband 
may  sue  the  wife  or  the  wife  the  husband,  and  the  husband  might  sue 
the  wife  upon  this  very  agreement  in  the  principal  case.  Neither  is  it 
a  true  rule  which  had  been  laid  down  by  the  other  side,  that  where  an 
action  cannot  be  brought  at  law  on  an  agreement  for  damages,  there  a 
suit  will  not  lie  in  equity  for  a  specific  performance,  as  is  plain  from 
this  case;  suppose  a  feme  infant  seised  in  fee,  on  a  marriage  with  the 
consent  of  her  guardians,  should  covenant  in  consideration  of  a  settle- 
ment to  convey  her  inheritance  to  her  husband;  if  this  were  done  in 
consideration  of  a  competent  settlement,  equity  would  execute  the  agree- 
ment, tho'  no  action  would  lie  at  law  to  recover  damages. 

But  in  regard  this  bond  was  a  very  stale  one  (being  given  so  long  since 
as  in  1678)  and  the  husband  had  for  so  long  a  time  omitted  to  sue  upon 
it  in  equity,  the  court  ordered  a  trial  at  law  to  see  whether  this  bond 
was  executed  or  not,  and  all  other  matters  to  be  respited  till  after  the 
trial.' 


Getchell  v.  Jewett  (1826),  4  Gree7il.  350,  360.— Mellex,  C.  J.— 
As  to  the  first  point,  the  defendant's  counsel  contends  that  where  a 
remedy  cannot  be  had  by  an  action  at  law  to  recover  damages  for  a 
breach  of  the  contract,  the  court  will  not  compel  a  specific  performance. 
In  support  of  this  position  he  cites  1  Harrison's  Ch.  Pr.  29.  Such  an 
action  could  not  be  maintained  against  Jewett,  because  his  engagement 
was  to  reconvey,  provided  the  plaintiff  should  make  the  before  men- 
tioned payments  at  the  times  appointed;  and  this  he  did  not  do.     The 

^  See   note   on   the   question   of   enforcing  contracts   between   husbands   and 
wives,  19  Am.  Dec.  230. 


102  GETCHELL  v.  JEWETT  [part  i. 

position  in  Harrison  is  not  true  in  the  broad  sense  in  which  it  is  laid 
down.  Newland,  in  his  treatise,  page  109,  says,  "  there  are  several 
*'  species  of  contracts  which  a  court  of  equity  will  enforce,  on  which  no 
"action  could  be  maintained  at  law  to  recover  damages;" — and  he  goes 
on  to  enumerate  many  of  them.  See  also  Cannel  v.  Buchle  2  P.  Wms. 
244.  Newland  230.  In  the  case  of  Alley  v.  Deschamps,  13  Ves.  224, 
which  was  a  bill  for  specific  performance,  the  Lord  Chancellor  in  de- 
livering his  opinion  says — "  This  relief,  I  hav6  formerly  observed,  was 
"first  given  upon  a  legal  right,  instead  of  damages;  which  was  followed 
"  by  another  class  of  cases  equally  clear,  that  when  a  party  was  not  able 
"  to  perform  his  engagement  according  to  the  letter  of  it,  if  the  failure 
"  was  not  substantial,  the  other  should  not  be  permitted  to  take  ad- 
"  vantage  of  the  strict  form."  In  Lloyd  v.  Collet  4  Bro.  469,  in  note  to 
Harrington  v.  Wheeler  4  Ves.  690,  the  Lord  Chancellor  held  a  language 
more  severe.  His  words  are,  "  Plaintiff  saj's,  by  my  own  default  this 
"contract  is  void  in  law;  I  cannot  succeed  at  law;  on  the  contrary,  the 
"  other  party  is  entitled  to  recover  back  the  money  he  has  paid  in 
**  expectation  of  the  execution  of  the  contract ;  therefore  an  equity  arises 
"  to  me ;  an  equity  out  of  his  own  neglect !  it  is  a  singular  head  of 
"  equity."  Camparing  this  last  case,  which  was  decided  many  years 
before,  with  that  of  Alley  v.  Deschamps,  we  perceive  an  increasing  dis- 
position to  extend  equitable  relief,  where  a  failure  in  some  unimportant 
particular  has  occurred,  but  no  substantial  inquiry  been  occasioned. 

It  is  true  that  in  Gibson  v.  Patterson  1  Ath.  12,  Lord  Hardwicke  seems 
to  have  laid  down  the  doctrine,  that  lapse  of  time  was  of  no  importance; 
and  to  have  decreed  in  favor  of  a  vendor,  without  any  regard  to  his 
negligence  in  not  procuring  his  title  deeds,  and  notwithstanding  a  con- 
veyance within  the  time  limited  for  the  purpose  by  the  articles.  But 
the  accuracy  of  the  report  is  denied;  and  in  Lloyd  v.  Collet  and  several 
other  cases,  the  generality  of  the  principle  laid  down  by  Lord  Hardwicke 
has  been  overruled,  and  a  different  one  established ;  and  it  seems  "  now 
''  the  acknowledged  rule  in  courts  of  equity,  that  where  the  party  who 
"  applies  for  a  specific  performance  of  a  contract,  has  omitted  to  execute 
"his  part  of  it  for  a  considerable  time  after  the  day  appointed  for  the 
"  purpose,  without  being  able  to  assign  sufficient  reasons  to  justify  or 
"  to  excuse  his  delay,  the  court  will  not  compel  a  specific  performance 
"  of  the  agreement,  considering  his  conduct  to  be  evidence  of  the  aban- 
"  donment  of  it."  Newland  242.  Lloyd  v.  Collet  4  Ves.  690.  Harring- 
ton V.  Wheeler  4  Ves.  686.  Marq^iis  of  Hertford  v.  Boore,  Astor  & 
Boore  5  Ves.  719.  Spurrier  v.  Hancock  4  Ves.  667,  and  other  cases  there 
cited.  See  also  Guest  v.  Horn  fray  5  Ves.  818.  Payne  v.  Miller  6  Ves. 
349.  Smilh  v.  Burnham  2  Anstr.  527.  Seton  v.  Slade  7  Ves.  265. 
Vernon  v.  Stephens  2  P.  Wms.  66.  Brazier  v.  Graiiz  &  al.  6  Wheat.  528. 
In  Davis  v.  Hone  2  Sch.  &  Lef.  347,  the  Lord  Chancellor  says,  "  a  court 
"  of  equity  frequently  decrees  performance,  when  the  action  at  law  has 
"been  lost  by  the  fault  of  the  very  party  seeking  the  specific  perform' 


CHAP.  III.]  LENNON  V.  NAPPER  103 

*'ance;  if  it  be,  notwithstanding,  conscientious  that  the  agreement 
"  sliould  be  performed ;  as  in  cases  where  the  terms  of  the  agreement 
"  have  not  been  strictly  performed  on  the  part  of  the  person  seeking 
"  specific  performance,  and  to  sustain  an  action  at  law,  performance 
*'  must  be  averred  according  to  the  very  terms  of  the  contract."  And  in 
Lennox  v.  Napper  ib.  084,  the  Chancellor  says,  that  the  courts,  in  all 
cases  of  contracts  for  estates  in  land,  have  been  in  the  habit  of  relieving, 
"where  the  party,  from  his  own  neglect,  had  suffered  a  lapse  of  time ;  and 
from  that  circumstance,  or  others,  could  not  maintain  an  action  to 
recover  at  law.  Courts  of  equity  have,  therefore,  enforced  contracts 
specifically  where  no  action  for  damages  could  be  maintained;  and  in 
various  cases  of  such  contracts  they  are  in  the  constant  habit  of  re- 
lieving the  man  who  has  acted  fairly,  though  negligently.  Thus  in  the 
case  of  an  estate  sold  at  auction,  there  is  a  condition  to  forfeit  a  deposit, 
if  the  purchase  be  not  completed  within  a  certain  time;  yet  the  court  is 
in  the  constant  habit  of  relieving  against  the  lapse  of  time;  and  so  in 
cases  of  mortgage;  and  in  many  instances  relief  is  given  against  mere 
lapse  of  time  where  that  is  not  essential  to  the  substance  of  the  contract. 


Lennox  v.  Napper  (1802),  2  Sch.  &  Lef.  682,  684.— Lord  Eedesdale. 
The  application  to  the  court  in  such  cases  is  to  compel  a  specific  per- 
formance of  a  covenant  to  make  an  estate  of  land:  This  is  a  good 
ground  for  application  to  a  court  of  equity,  upon  which  it  daily  exercises 
jurisdiction;  and  specific  performance  ought  to  be  decreed,  unless  there 
are  particular  circumstances  which  ought  to  exclude  the  party  from 
relief.  The  courts  in  all  cases  of  contracts  for  estates  in  land,  have  been 
in  the  habit  of  relieving,  where  the  party  from  his  own  neglect  had  suf- 
fered a  lapse  of  time,  and  from  that,  or  other  circumstances,  could  not 
maintain  an  action  to  recover  damages  at  law :  and  even  where  nothing 
exists  to  prevent  his  suing  at  law,  so  many  things  are  necessary  to  enable 
liim  to  recover  at  law,  that  the  formalities  alone  render  it  very  incon- 
venient and  hazardous  so  to  proceed :  nor  could,  in  many  cases,  the  legal 
remedy  be  adequate  to  the  demands  of  justice.  Courts  of  equity  have, 
therefore,  enforced  contracts  specifically,  where  no  action  for  damages 
could  be  maintained;  for,  at  law,  the  party  plaintiff  must  have  strictly 
performed  his  part,  and  the  inconvenience  of  insisting  upon  that  in  all 
cases  was  sufiicient  to  require  the  interference  of  courts  of  equity.  They 
dispense  with  that  which  would  make  compliance  with  what  the  law 
requires  oppressive:  and  in  various  cases  of  such  contracts,  they  are  in 
the  constant  habit  of  relieving  the  man  who  has  acted  fairly,  though 
negligently.  Thus  in  the  case  of  an  estate  sold  by  auction,  there  is  a 
condition  to  forfeit  the  deposit,  if  the  purchase  be  not  completed  within 
a  certain  time ;  yet  the  court  is  in  the  constant  habit  of  relieving  against 
the  lapse  of  time:  and  so  in  the  case  of  mortgages,  and,  in  many  in- 
stances, relief  is  given  against  mere  lapse  of  time,  where  lapse  of  time 
is  not  essential  to  the  substance  of  the  contract. 


104  HAMILTON  v.  GUMMING S  [part  i. 


HAMILTON  V.  CUMMINGS. 

In    the    Court    of    Ghancery    of    New    York,   Before    Ghancellor 

Kent,  1815. 

[1  Johnson's  Chancery  517.]  ' 

The  Ghancellor  [Kent].  Upon  the  answer  and  proofs  in  this  cause, 
the  relief  sought  and  claimed  is,  that  the  two  bonds  acknowledged  to  be 
held  by  the  defendant,  should  be  decreed  to  be  delivered  up  and  cancelled. 
The  question,  whether  such  a  remedy  can,  or  ought  to  be  applied,  leads 
to  an  interesting  inquiry. 

I.  The  Defendant  admits  that  he  holds  a  bond,  executed  by  the 
ancestor  of  the  plaintiff,  on  the  22d  of  Septemler,  1788,  for  the  pay- 
ment of  996  I.  on  the  first  of  January  following;  and  that  it  was  given 
upon  a  special  trust,  of  a  secret  and  delicate  nature,  which  he  does  not 
think  proper  to  disclose ;  and  that  it  was  to  be  in  force  only  upon  certain 
contingencies  which  have  not  yet  happened,  and,  probably,  never  will; 
and  that  he  paid  no  money  or  other  consideration  for  it,  and  has  no 
personal  interest  in  it,  nor  has  ever  pretended  to  put  it  in  suit.  After 
such  a  confession,  it  would  be  very  unreasonable  that  the  bond  should  be 
suffered  to  continue  a  dead  weight  upon  the  property  that  may  have 
descended  to  the  plaintiff.  It  is,  however,  not  easy  to  extract  from  the 
books  any  precise  rule  by  which  the  jurisdiction  of  the  court  is,  in  such 
cases,  to  be  exercised.  The  bond,  most  probably,  could  not  be  enforced 
at  law,  though  it  appears  on  the  face  of  it  to  be  an  absolute  bond  for  the 
payment  of  money.  The  lapse  of  27  years,  if  not  most  satisfactorily 
accounted  for,  would  form  of  itself  a  conclusive  bar  to  a  recovery;  and 
the  admission  in  the  answer  must  destroy  its  validity  here,  even  if  they 
cannot  be  received  as  a  defence  at  law.  "^Tiy,  then,  should  it  any  longer 
exist  to  cast  even  a  shade  over  the  title  to  the  assets  of  the  ancestor  ? 

I  have  looked  into  the  cases  on  the  point  of  jurisdiction,  and  I  have 
no  doubt  that  the  court  has  competent  power  to  order  the  bond  to  be 
cancelled;  and  the  power  is  the  more  necessary  since  there  is  no  such 
jurisdiction  at  law. 

In  Minshaw  v.  Jordan,  (3  Bro.  18.  n.,)  a  bill  was  filed  to  have  a 
promissory  note  delivered  up  and  cancelled,  as  obtained  by  fraud,  and 
without  consideration.  The  Master  of  the  Rolls  retained  the  bill,  and 
allowed  the  defendant  to  proceed  at  law  upon  the  note;  and  the  verdict 
being  found  against  it,  he  then  decreed  that  the  note  be  delivered  up  to 
the  plaintiff  to  be  cancelled.  But,  afterwards,  in  Ryan  v.  Macmath, 
(?)  Bro.  15,)  Lord  Thurloiv  would  not  direct  a  note  to  be  delivered  up, 
though  a  recovery  had  been  unsuccessfully  attempted  at  law;  and  he 
would  not  admit  the  rule  in  this  general  extent,  that  whenever  one  party 

*  A  .stutenicnt  of  facts  lias  been  omitted. 


CHAP.  III.]  HAMILTON  v.  GUMMING S  105 

had  an  instrument  on  which  he  could  not  maintain  an  action  at  law, 
he  must  be  decreed  to  give  it  up,  and  he  accordingly  dismissed  the  bill, 
but  without  costs.  Sir  Samuel  Romilly,  in  citing  this  case,  in  13  Ves. 
584,  observed,  that  the  decision  was  disapproved  of,  at  the  time,  as  the 
note  was  void,  not  upon  the  face  of  it,  but  from  collateral  circum- 
stances; and  in  Newman  v.  Milner,  (2  Ves.  jun.  483,)  notwithstanding 
this  case  of  Ryan  v.  Mackmoth  was  mentioned,  Lord  Loughborough 
ordered  a  bill  of  exchange,  avowedly  given  by  one  partner  in  the  name  of 
the  firm,  for  his  private  debt,  to  be  delivered  up,  with  costs,  without 
even  waiting  to  have  its  validity  tried  at  law;  and  he  did  it  on  the 
ground,  that  the  evidence  was  clear  and  decisive  against  the  bill,  and 
that  the  payee  took  it,  knowing  it  to  be  for  a  private  debt,  and  that 
there  was  no  need  of  a  verdict  to  satisfy  the  conscience  of  the  court. 
But  the  subsequent  cases  of  Franco  v.  Bolton,  (3  Ves.  3G8,)  and  of  Gray 
V.  Mathias,  (5  Ves.  286,)  are  calculated  to  throw  doubt  once  more  on  the 
exercise  of  this  power.  In  the  first  of  those  eases,  a  bond  was  alleged 
to  have  been  given  for  an  illegal  consideration,  and  the  obligee  had 
obtained  a  verdict  at  law.  The  bill  was  to  have  the  bond  delivered  up; 
but  it  was,  on  demurrer,  dismissed  by  Lord  Loughborough,  on  the 
ground,  that  there  was  no  necessity  for  the  interposition  of  the  court, 
as  the  matter  could  have  been  pleaded,  and  the  bond  rendered  null,  at 
law.  In  the  other  case,  the  bond  was  void  on  its  face,  as  appearing  to 
have  been  given  pro  turpi  causa,  but  the  court  of  exchequer  refused 
a  decree  to  deliver  it  up,  and  principally  on  the  ground  of  the  length 
and  expense  of  such  a  remedy  in  equity,  when  the  defence  at  law  was 
irrefragable.  The  Ch.  Baron  observed,  with  some  sensibility,  that 
though  equity  might  have  a  concurrent  jurisdiction,  it  was  not  fitting, 
in  that  particular  case,  to  exercise  it,  as  the  plaintiff  had  a  full  defence 
at  law;  and  it  was  oppressive  to  seek,  by  a  long  and  costly  litigation  in 
chancery,  to  have  the  bond  delivered  up,  when,  by  the  plaintiff's  own 
showing,  it  was  a  mere  nullity.  In  that  case,  the  bond  had  never  been 
sued  at  law,  and  the  bill  was  dismissed,  with  costs. 

The  equity  power  was  afterwards  asserted  by  Lord  Eldon,  in  Bromley 
v.  Holland,  (7  Ves.  3,)  and  he  dwelt  much  on  the  question  of  jurisdic- 
tion, and  did  not  concur  in  the  decision  in  Franco  v.  Bolton.  He  seemed 
to  think  the  question  had  become  settled,  by  a  serious  of  decisions,  in 
favour  of  the  authority  of  the  court  to  direct  instruments  to  be  delivered 
up,  though  they  might  be  void  at  law.  He  admitted  there  was  some  de- 
gree of  contradiction  in  the  cases,  but  he  inclined  in  favour  of  the  juris- 
diction, even  if  the  question  had  been  res  integra;  and  though  he  could 
not  say,  if  it  was  clear  that  no  use  could  be  made  of  the  instrument. 
that  was  groimd  enough  for  the  equitable  jurisdiction,  yet  "  it  was  not 
unwholesome  that  an  instrument  should  be  delivered  up  upon  which  a 
demand  may  be  vexatiously  made  as  often  as  the  purpose  of  vexation 
may  urge  the  party  to  make  it."  In  Jackman  v.  Mitchell,  (13  Ves. 
581,)  the  equity  jurisdiction  was  again  freely  exercised.    The  bond  there 


lOG  HAMILTON  v.  GUMMING S  [part  i. 

was  given  to  secure  one  creditor  the  deficiency  of  a  composition,  and 
was  never  communicated  to  the  other  creditors,  and  had  never  been  put 
in  suit.  The  bill  charged  the  bond  to  have  been  thus  taken  against  the 
policy  of  the  law,  and  in  fraud  of  creditors;  and  the  counsel  for  the 
defendant,  when  speaking  of  the  jurisdiction,  observed,  that  if  an  in- 
strument was  void  upon  its  face,  the  court  would  not  assume  jurisdiction 
and  cancel  it,  because  it  was  void  at  law ;  and  that  "  there  was  no  in- 
stance of  a  decree  for  delivering  up  a  bond,  appearing  upon  the  face  of 
it  to  be  void."  Lord  Eldon  expressly  waived  any  opinion  on  that  dis- 
tinction as  to  jurisdiction,  but  said  that  the  bond  was  bad,  because  it 
was  proved,  aliunde,  that  it  was  intended  to  be  kept  secret;  and  he 
accordingly  decreed,  that  it  be  delivered  up,  and  awarded  costs  against 
the  defendant. 

I  am  inclined  to  think,  that  the  weight  of  authority,  and  the  reason 
of  the  thing,  are  equally  in  favour  of  the  jurisdiction  of  the  court, 
whether  the  instrument  is,  or  is  not,  void  at  law,  and  whether 
it  be  void  from  matter  appearing  on  its  face,  or  from  proof 
taken  in  the  cause,  and  that  these  assumed  distinctions  are  not  well 
founded.  It  is  every  day's  practice,  as  the  counsel  observed,  in  French 
V.  Connelly,  (2  Anst.  454,)  to  order  instruments  to  be  delivered  up,  of 
which  a  bad  use  might  be  attempted  to  be  made  at  law,  although  they 
could  not  even  there  entitle  the  holders  to  recover.  It  is,  indeed,  not 
very  apparent,  why  a  doubt  could  have  been  started  in  some  of  these 
modern  cases  as  to  the  general  jurisdiction  of  the  court,  when  we  con- 
sider the  uniform  tenor  and  language  of  the  more  ancient  decisions,  and 
which  do  not  appear  to  have  turned  upon  the  distinction  whether  the 
instruments  were,  or  were  not,  void  at  law.  In  Whittingham  v.  Thorn- 
hurgh,  (2  Vern.  206,)  and  Goddart  v.  Garrett,  (ibid.  269,)  and  De  Costa 
V.  Scandrel,  (2  P.  Wms.  170,)  policies  of  insurance,  procured  by  fraud, 
were  ordered  to  be  delivered  up  and  cancelled,  though  the  fraud  was 
equally  a  defence  at  law.  And  in  another  case,  (Law  v.  Laiv,  Cases 
temp.  Talhot,  140.  3  P.  Wms.  391,)  Lord  Talbot  ordered  a  bond  to  be 
cancellec?,  and  chargfed  the  defendant  with  costs,  without  deciding 
whether,  or  not,  it  was  good  at  law.  But,  while  I  assert  the  authority 
of  the  court  to  sustain  such  bills,  I  am  not  to  be  understood  as  en- 
couraging applications  where  the  fitness  of  the  exercise  of  the  power  of 
the  court  is  not  pretty  strongly  displayed.  Perhaps  the  cases  may  all  be 
reconciled  on  the  general  principle  that  the  exercise  of  this  power  is  to 
be  regulated  by  sound  discretion,  as  the  circumstances  of  the  individual 
case  may  dictate;  and  that  the  resort  to  equity,  to  be  sustained,  must 
be  expedient,  either  because  the  instrument  is  liable  to  abuse  from  its 
negotiable  nature,  or  because  the  defence  not  arising  on  its  face,  may 
be  difficult,  or  uncertain  at  law,  or  from  some  other  special  circum- 
stances peculiar  to  the  case,  and  rendering  a  resort  here  highly  proper, 
and  dear  of  all  suspicion  of  any  design  to  promote  expense  and  litiga- 
tion.   If,  however,  the  defect  appears  on  the  bond  itself,  the  interference 


CHAP.  III.]  HAMILTON  v.  CUMMINGS  107 

of  this  court  will  still  depend  on  a  question  of  expediency,  and  not  on 
a  question  of  jurisdiction.  It  may,  sometimes,  become  essential  to  the 
perfect  and  tranquil  enjoyment  of  private  right,  that  this  most  important 
branch  of  equity  power  should  be  exercised  in  the  one  case  as  well  a3 
in  the  other;  and  it  may  be  here  observed,  that  in  the  case  of  Law  v. 
Law,  the  whole  consideration  was  spread  out  upon  the  bond,  and  that, 
as  the  case  is  reported  in  Peere  Williams,  the  Lord  Ch.  was  inclined  to 
consider  the  bond  as  void  at  law  as  well  as  in  equity,  and  yet  he  cancelled 
the  bond  without  sending  the  parties  to  law.  The  learned  counsel, 
therefore,  in  Jachman  v.  Mitchell,  appear  to  me  to  have  hazarded  too 
much  in  their  assertion  that  there  was  no  such  case  to  be  found. 

The  bond  now  in  question  comes  within  that  case,  for  it  is  good  on 
its  face,  and  void  only  from  the  facts  disclosed  by  the  defendant's  an- 
swer. We  can,  consistently  with  the  whole  current  authority,  direct  it 
to  be  cancelled.  It  is  the  more  proper  to  do  so,  because  it  is,  at  least, 
doubtful,  whether  the  pretended  secret  trust,  under  which  it  was  taken, 
and  the  failure  of  that  trust,  would  be  received  as  a  defence  at  law.  My 
impression  is,  that  it  could  not.  But,  in  this  court,  the  evidence  fur- 
nished by  the  answer  is  decisive.  The  defendant  holds  a  bond  for  27 
years,  and  says  it  was  given  upon  a  trust  which  he  ought  not  to  disclose, 
and  depends  upon  a  contingency  which  has  never  happened,  and  which 
he  says  is  only  within  the  reach  of  possibility.  Such  a  bond  cannot  be 
permitted  to  endure  for  ever,  and  we  cannot  recognize  any  trust  which 
is  not  disclosed,  and  is,  therefore,  unknown.  It  is  not  convenient,  or 
just,  that  such  a  bond  should  continue,  with  a  pretension  to  the  assets 
in  the  hands  of  the  plaintiff.  It  might  embarrass  their  application,  or 
weaken  their  security,  or  poison  their  enjoyment.  It  is  immoral  for  a 
person  to  retain  a  bond  which  is  useless  to  him,  and  an  annoyance  to 
others. 

This  bond  must,  therefore,  be  delivered  up,  and  cancelled. 

2.  The  other  bond,  conditioned  for  the  payment  of  60  pounds,  and  on 
which  a  suit  is  pending  at  law,  is  shown,  by  the  proof,  to  be  no  longer 
valid.  It  bears  date  on  the  27th  day  of  Septemher,  1794,  and  is  made 
payable  on  the  29th  of  the  same  month ;  and  the  answer  of  the  defendant 
avers  that  it  was  given  for  a  debt  justly  due  on  a  settlement  of  accounts; 
and  denies  that  it  was  given  to  indemnify  the  defendant  for  becoming 
bail  in  any  suit  whatever;  and  that  the  defendant  was  never  bail  in  any 
suit  for  the  obligor.  The  answer  further  states,  that  one  of  the  witnesses 
to  the  bond  is  dead,  and  that  William  Hill,  the  other  witness,  is  living, 
and  is  a  man  of  good  repute.  This  cause  was  put  at  issue,  and  witnesses 
examined  on  each  side,  and  publication  passed  by  consent.  In  the  course 
of  examination,  the  plaintiff  proves,  by  this  same  witness,  that  he  was 
present  at  the  execution  of  the  bond ;  and  that  he,  with  the  other  witness, 
(now  dead,)  at  the  same  time,  attested  a  receipt  given  by  the  defendant 
to  the  obligor,  showing  that  the  bond  was  given  by  way  of  indemnity 
to  the  defendant  for  becoming  bail  for  the  obligor.    The  receipt  is  made 


108  ANDREWS  i;.  FRIERSON*  [part  r. 

an  exhibit  in  the  cause,  and  proved  by  his  witness;  and  it  is  of  the 
same  date  with  the  bond,  and  declares  that  the  bond,  which  it  duly 
specifies,  was  given  as  an  indemnity  to  the  defendant  for  being  surety 
for  the  obligor,  in  a  suit  brought  against  him  by  one  Samuel  Wood;  and 
that  if  the  suit  was  settled  and  discharged  in  due  time,  without  any 
further  damage,  the  bond  was  to  be  void.  No  damage  is  pretended  to 
have  been  sustained.  The  defendant  denies  that  he  ever  was  bail  for 
the  obligor.  As  the  receipt  goes  to  contradict  the  express  terms  of  the 
bond,  and  is  not  under  seal,  I  apprehend  it  would  not  be  admitted,  at 
law,  as  a  defence  against  the  payment  of  the  bond;  and  as  it  forms  a 
matter  of  defence  dehors  the  bond,  and  is  good  in  equity,  it  brings  the 
case  within  the  reach  of  all  the  decisions  in  favour  of  the  exercise  of 
the  jurisdiction  of  this  court;  and  it  becomes  essential  to  justice  that  the 
court  should  interfere  and  protect  the  plaintiff  from  the  claim  set  up 
at  law. 

I  have  not  deemed  it  regular  to  take  notice  of  the  suggestion  of  the 
counsel  for  the  defendant,  accompanying  his  brief,  (for  the  case  was,  by 
mutual  arrangement  and  consent,  argued  on  paper,)  of  a  defect  in 
the  interrogatories  on  the  part  of  the  plaintiff,  and  of  the  delay  of  his 
solicitor  to  produce  the  exhibit.  There  is  no  motion  before  me  on  the 
subject,  nor  would  it  have  been  in  season  if  it  had  been  made;  for  even 
before  the  last  term,  publication  passed  by  a  rule  entered  by  consent, 
and  the  cause  was,  by  the  like  consent,  set  down  for  hearing  at  the  last 
term.  I  shall,  accordingly,  decree,  that  both  the  bonds  be  delivered  up 
to  the  register,  or  assistant  register,  and  cancelled  within  20  days  after 
notice  of  this  decree;  and  that  the  defendant  be  perpetually  enjoined 
from  prosecuting  either  of  the  said  bonds  at  law ;  and  that  the  defendant 
pay  the  costs  which  have  accrued  in  the  suit  at  law,  and,  also,  the  costs 
of  this  suit. 

Decree  accordingly. 


Andrews  v.  Frierson  (1902),  134  Ala.  626,  630.— Haralson,  J. 
The  prayer  of  the  bill  is  for  a  rescission  and  cancellation  of  complain- 
ant's said  contract  with  Frierson;  for  an  injunction  against  the  prosecu- 
tion of  said  suits  at  law;  for  an  ascertainment  of  the  amount  that  ought 
to  be  paid  by  complainant  to  said  Frierson  for  his  services  in  making 
said  sale,  and  a  decree  directing  how  the  same  shall  be  paid,  and  for 
general  relief.  The  chancellor,  on  the  motion  of  defendants,  dis- 
missed the  bill  and  dissolved  the  temporary  injunction,  on  the  ground 
that  complainant  liad  a  complete  and  adequate  remedy  at  law,  and  that 
there  was  no  equity  in  the  bill. 

Frierson,  as  stated,  has  not  sued  complainant,  and  if  complainant 
could  successfully  defend  at  law  the  suit  brought  against  him  in  the 
circuit  court  by  Gann,  and  the  garnishment  against  him  in  the  suit  of 
Oann  v.  Frierson  in  that  court,  it  is  evident  that  in  neither  of  these 


CHAP.  III.]  NEWTON  v.  SWAZEY  109 

suits  could  he  obtain  a  judgment  which  would  be  a  complete  defense 
to  a  suit  which  may  hereafter  be  brought  by  Frierson  against  him 
arising  out  of  his  said  contract  with  the  latter.  Relief  against  said  suits 
arising  out  of,  but  not  based  directly,  on  said  contract,  is  incidental 
to  the  relief  here  sought,  which  is  for  the  rescission  and  cancellation  of 
said  contract.  It  is  evident  that  the  powers  of  a  court  of  law  are  not 
adequate  for  the  purposes  sought. 

As  to  the  power  of  a  court  of  equity  to  rescind  and  cancel  written 
instruments,  procured  to  be  made  by  fraud,  it  is  well  settled  that  its 
jurisdiction  may  be  fully  exercised.  The  decisions  of  courts  so  holding, 
says  Story,  "  are  founded  on  the  true  principles  of  equity  jurisprudence, 
which  is  not  merely  remedial  but  also  preventive  of  injustice.  If  an  in- 
strument ought  not  to  be  used  or  enforced,  it  is  against  conscience  for 
the  party  holding  it  to  retain  it,  since  he  can  only  retain  it  for  sinister 
purposes."  The  rule  applies  to  deeds,  negotiable  instruments  or  mere 
written  agreements  or  contracts,  solemn  or  otherwise.  As  to  an  instru- 
ment of  the  latter  character,  the  same  author  observes,  "  Wliile  it  exists, 
it  is  always  liable  to  be  applied  to  improper  purposes,  and  it  may  be 
vexatiously  litigated  at  a  distance  of  time  when  the  proper  evidence 
to  repel  the  claim  may  have  been  lost  or  obscured,  or  when  the  other 
party  may  be  disabled  from  contesting  its  validity  with  as  much  ability 
and  force  as  he  can  contest  it  at  the  present  moment." — Story  Eq.  Juris., 
§700 ;  1  Pom.  Eq.  J.,  221 ;  Merritt  v.  Ehrman,  116  Ala.  278 ;  Pinhston  v. 
Boykin,  130  Ala.  483. 

In  this  suit  with  all  the  parties  before  it,  the  court  may  proceed  to 
settle  all  their  troubles,  give  each  party  his  rights  and  quiet  apprehension 
and  liability  to  further  litigation  arising  out  of  said  contract. 

The  court  erred  in  the  decree  rendered,  and  it  will  be  reversed  and  the 
cause  remanded. 

Reversed  and  remanded. 


NEWTON  V.  SWAZEY. 

In  the  Supreme  Court  of  Judicature  of  Neav  Hampshire,  1835. 

[8  New  Hampshire  1.] 

In  Chancer!'.  The  plaintiff  entered  into  an  agreement  with  Swazey 
and  Gookin  by  the  terms  of  which  they  were  to  deed  to  the  plaintiff 
a  certain  tract  of  land,  of  which  they  were  tenants  in  common,  when  the 
plaintiff  should  have  paid  certain  notes  which  he  gave  for  the  purchase 
price.  The  plaintiff  went  into  possession  and  paid  the  notes  as  they  be- 
came due.  It  further  appeared  that,  through  a  mistake,  the  agreement 
had  never  been  executed  by  Gookin.  Gookin  died  intestate  before  the 
time  for  payment  of  the  last  notes.  The  plaintiff  now  offers  to  pay  the 
balance  due,  providing  he  can  receive  a  good  title  to  the  property.  He 
alleges  that  he  has  at  various  times  since  the  death  of  Gookin  applied 


110  NEWTON  V.  SWAZEY  [p.uit  i. 

to  Swazey  and  the  heirs  of  Gookin,  and  the  guardians  of  those  who  were 
minors,  and  has  requested  them  to  make  him  a  good  warranty  deed  on 
his  paying  the  full  amount. 

The  bill  then  prayed  a  decree  that  the  defendants  should  convey  the 
land  to  the  plaintiif,  on  the  payment  of  the  balance  due/ 

Parker,  J.  *  *  *  The  defendants,  by  their  neglect  to  put  in  an 
answer,  in  compliance  with  the  rule,  admit  all  the  allegations  in  the  bill ; 
and  it  is  understood  they  have  no  objections  to  a  decree  such  as  is 
prayed,  if  the  heirs  of  said  Gookin  may  lawfully  be  directed  to  joiu 
with  the  defendant,  Swazey,  in  the  execiition  of  the  conveyance. 

It  is  admitted,  then,  that  Gookin  and  Swazey,  being  seized  of  the  land 
as  tenants  in  common,  bargained  and  sold  the  same  to  the  plaintiif, 
and  agreed  to  execute  a  writing  obligatory,  that  upon  certain  conditions 
they  would  deliver  him  a  warrantee  deed; — that  the  bond  was  drawn, 
and  was  executed  by  Swazey,  but  by  mistake  and  accident  was  never 
executed  by  Gookin. 

Had  this  obligation  been  executed  by  both  the  defendants,  there 
could  not  have  been  any  objection  on  account  of  the  form  of  the  instru- 
ment. An  agreement  to  convey  may  be  enforced,  notwithstanding  it  is 
secured  by  a  penalty,  and  may  be  contained  in  the  condition  of  a  bond. 
2  Athyns  371,  Howard  vs.  Hophyns;  Sugden  vs.  Vendors,  163;  1  Mad- 
dock's  Ch.  374,  note  2;  2  Vesey  Sen.  528,  ChilUner  vs.  Chilliner;  1  P. 
Wms.  191,  Hohson  vs.  Trevor.  Courts  of  equity  look  not  to  the  form 
but  the  substance,  and  the  bill  sets  forth,  substantially,  an  agreement 
to  convey,  upon  the  payment  of  certain  notes,  and  that  an  obligation  was 
drawn  containing  a  condition  for  securing  the  performance  of  that 
agreement,  and  executed  by  Swazey. 

But  had  Gookin  lived,  no  bill  could  have  been  maintained  against  him 
on  account  of  the  bond,  because  it  was  not  executed  by  him;  and  as. 
Swazey  could  not  perform  the  entire  agreement  there  stated,  having 
title  to  but  part  of  the  land,  there  would  be  no  propriety  in  entering 
a  decree  against  him  alone. 

The  bond,  however,  merely  contained  the  stipulation  upon  which  the 
parties  had  before  agreed.  The  bill  states  that  Gookin  and  Swazey  sold 
the  land  to  the  plaintiff,  and  that  he  gave  his  notes;  and  the  bond  was  in- 
tended to  be  a  security  for  a  conveyance  to  him  upon  the  payment  of  the- 
notes. 

The  question  then  is,  whether  this  sale  by  parol  can  be  enforced,  or 
whether  the  plaintiff  is  barred  from  the  relief  he  seeks,  by  the  provisions 
of  the  statute,  that  all  leases,  estates,  interests  of  freehold,  &c.,  made  and 

'  This  statement  of  the  case  is  substituted  for  that  of  the  Reporter. 

The  fine  quality  of  Judge  Parker's  mind  is  seen  to  advantage  in  the  ease  of 
IJritton  V.  Turner  (18.34)  6  N.  H.  481,  in  which  ivdcbitaius  assumpsit  was 
forced  to  do  a  great  and  it  is  to  he  hoped  an  abiding  equity. 

It  is  f)f  interest  to  note  that  the  learned  judge  was  for  many  years  until  his 
death  professor  in  the  Harvard  Law  School. 


CHAP.  III.]  NEWTON  V.  SWAZEY  111 

created  by  parol,  and  not  in  writing,  shall  have  the  force  and  effect  of 
leases  at  will  only,  and  shall  not,  either  in  law  or  equity,  be  deemed  or 
taken  to  have  any  greater  force;  and  that  no  action  shall  be  maintained 
upon  any  contract  for  the  sale  of  lands,  tenements  or  hereditaments, 
or  any  interest  in  or  concerning  them,  unless  the  agreement  upon  which 
such  action  shall  be  brought,  or  some  memorandum  thereof,  be  in 
writing,  and  signed  by  the  parties  to  be  charged  therewith,  or  signed 
by  some  other  person  thereunto,  lawfully  authorized  by  writing. 

There  are  two  grounds  upon  which  a  decree  for  a  specific  performance 
may  be  made  in  this  case,  notwithstanding  these  provisions  of  the 
statute. 

The  statute  was  intended  to  guard  against  fraud  and  perjury,  and  the 
proof  of  agreements  of  this  character  by  evidence  very  liable  to  mistake 
or  misapprehension.  If,  therefore,  there  is  no  dispute  about  the  agree- 
ment, the  case  is  not  within  the  reason  of  the  statute;  and  it  is  settled 
that  when  the  agreement  is  distinctly  set  forth  in  the  bill,  and  confessed 
by  the  answer,  a  court  of  equity  will  decree  a  specific  performance,  not- 
withstanding the  agreement  was  not  reduced  to  writing,  unless  the  party 
insists  upon  the  benefit  of  the  statute.  1  Madd.  Ch.  383 ;  1  Ves.  Sen.  220, 
Attorney  General  vs.  Day;  6  Yes.  37,  Cooth  vs.  Jachson;  4  Ves.  23, 
Moore  vs.  Edwards;  12  Yes.  471,  Bragdcn  vs.  Bradbear;  15  Ves.  375, 
Rowe  vs.  Teed. 

In  this  case  the  argument  is  confessed,  not  by  the  answer,  but  by  the 
neglect  to  comply  with  the  rule  to  put  in  an  answer;  and  there  is  no  un- 
certainty about  the  terms  of  the  agreement.  They  are  alleged  in  the  bill, 
and  were  in  fact  reduced  to  writing  at  the  time,  so  that  there  has  been 
no  ground  for  any  misunderstanding  about  them, — and  the  defendants 
do  not  set  up  the  statute  in  bar. 

Again — the  agreement  is  not  only  admitted,  but  there  has  been  a  part 
performance  of  the  contract,  which  is  held  in  equity  not  to  overrule  the 
statute,  but  to  take  the  case  out  of  it.  1  Madd.  Ch.  376;  1  Yern.  160, 
note;  ditto,  363,  Butcher  vs.  Stapely  &  Butcher;  2  Yern.  455,  Pyhe  vs. 
Williams;  3  Yes.  381,  Wills  vs.  Stradling;  ditto  38,  note  a;  18  Yes.  328, 
Gregory  vs.  Mighill;  1  Swanston  181,  Morphett  vs.  Jones;  14  Johns. 
Rep.  15,  Parhhurst  vs.  Van  Cortland. 

Where,  however,  there  is  an  uncertainty  as  to  the  terms  of  the  agree- 
ment, a  specific  performance  cannot  be  decreed,  but  other  relief  is  some- 
times granted.  1  Madd.  379;  2  Eq.  Cas.  Ahr.  46,  Lord  Pengall  and  Ross; 
1  Johns.  Ch.  R.  146,  Phillips  vs.  Thompson;  14  Joh7is.  37,  41,  S.  C. 
in  error. 

Here  has  been  not  only  a  payment  of  part  of  the  purchase  money,  but 
the  plaintiff  has  been  let  into  possession,  and  has  proceeded  to  make 
valuable  improvements;  and  this  it  is  well  settled  constitutes  a  part 
performance  within  the  rule.  1  Madd.  380.  Whether  the  mere  payment 
of  part  of  the  purchase  money  would  have  been  sufficient,  seems  not  so 
clearly  settled. 


112  HOED  V.  BAUGH  [part  i. 

Under  the  existing  circumstances,  it  would  be  a  great  hardship  upon 
the  plaintiff  if  he  could  not  have  the  contract  specifically  performed; 
and  the  only  obstacle  to  this,  in  point  of  fact,  has  probably  arisen  from 
the  decease  of  Gookin.  But  this  forms  no  objection  in  law  to  the 
maintainance  of  a  bill  for  specific  performance,  in  a  case  where  such  per- 
formance might  have  been  enforced  had  the  party  lived.  The  death  of 
either  of  the  parties  to  the  contract  does  not  impair  its  obligation. 
Where  there  is  an  efl^ectual  agreement  for  the  sale  of  an  estate,  by  one 
then  entitled,  the  heir  of  the  vendor  is  bound  to  perform  it,  and  the 
personal  representative  may  enforce  it  against  the  vendee.  1  Madd.  Ch. 
368;  2  Ver?i.  215,  Baden  vs.  Countess  of  Pemhrohe;  3  AtJcyns  1,  Lacon 
vs.  Mertins. 

We  are  of  opinion,  therefore,  that  the  complainant  is  entitled  to  the 
relief  sought  by  the  bill. 

HORD  V.  BAUGH. 

In  the  Supreme  Court  of  Tennessee,  1847. 

[7  Humphreys  576.]  ^ 

Bill  by  Hord  against  the  heirs  of  Josiah  Baugh,  showing  that  said 
Baugh,  being  the  owner  of  a  tract  of  land,  conveyed  it  to  Thomas  F. 
Fowlkes,  who  conveyed  to  plaintiff;  that  the  deed  to  Fowlkes  was  lost 
before  recording;  that  complainant  was  in  possession  at  the  filing  of  the 
bill.  The  bill  prayed  for  general  relief,  and  also  that  the  said  deed  be 
set  up,  and  that  the  title  to  the  land  be  divested  out  of  the  heirs  of 
Baugh,  etc.  Defendant  admitted  all  the  charges  of  the  bill,  and  sub- 
mitted to  such  decree  as  the  court  should  think  proper.  Bill  dismissed. 
Complainant  appealed. 

TuRLEY,  J.  delivered  the  opinion  of  the  court. 

This  bill,  filed  by  complainant,  asking  the  aid  of  a  Court  of  Chan- 
cery to  set  up  a  deed  of  bargain  and  sale  for  a  tract  of  land,  which  was 
lost  and  destroyed  before  registration,  the  bargainor  having  departed 
this  life  without  executing  another. 

The  representatives  of  the  bargainor  do  not  resist  the  relief  sought, 
but  the  Chancellor  dismissed  the  bill,  upon  the  ground  that  the  bargainor 
having  once  conveyed  the  land,  had  parted  with  all  his  interest  therein, 
and  that  the  Court  had  no  jurisdiction  of  such  case. 

In  this  we  think  the  Chancellor  erred.  The  loss  of  the  deed  is  a 
casualty  seriously  endangering  the  complainant's  title,  as  he  can  main- 
tain no  action  of  ejectment  without  it.  He  then  certainly  must  have 
a  right  to  ask  the  aid  of  a  Court  of  Chancery  in  his  case,  either  by 
having  the  legal  title  vested  in  him  as  against  the  bargainor  and  his 
roprosentativcs,  or  by  having  the  deed  set  up  and  established  as  in  all 
other  cases  of  lost  deeds.  The  complainant  may  have  his  decree  for 
cither  or  both  of  these  remedies. 

'  This  statonient  of  the  case  is  taken  from  the  report  of  the  ease  in  4G  Am. 
Dec.   91. 


CHAP.  III.]  PAEKER  V.  DEE  113 

Section  3.    Discovery  as  a  Source  of  Equity  Jurisdiction. 


REYNOLDS  v.  BURGESS  SULPHITE  CO. 
In  the  Supreme  Court  of  New  Hampshire,  1902. 
[71  New  Hampshire  332.] 
See  case  as  printed  on  p.  45  supra. 


Section  4.    Jurisdiction  over  Part  is  Jurisdiction  over  the  Whole, 


PARKER  V.  DEE. 

In  Chancery,  before  Lord  Keeper  Finch,  1674. 

[2  Cases  in  Chancery  200.] 

Charles  Everard,  a  banker,  owed  the  plaintiff  700 1,  and  was  also 
indebted  to  divers  other  persons  by  book-debts,  &c.  without  seal,  and  by 
several  judgments  to  others,  and  to  B.  by  recognizance  in  chancery  to 
perform  the  order  of  the  court,  and  that  being  for  money  there  was  a 
judgment  thereon,  so  the  recognizance  and  judgment  was  for  the  same 
debt  in  effect,  the  defendant  being  executor  of  Everard.  Trin.  the  plain- 
tiff sued  the  defendant  in  communi  banco  for  his  debt.  The  defend- 
ant pleaded  all  the  judgments  which  were  on  penal  bonds,  and  pleaded 
also  the  said  recognizance  ultra  quod,  &c.  he  had  no  assets;  the  plaintiff 
sued  her  April,  1668,  to  discover  the  truth  of  the  plea,  and  debts  therein 
set  forth  and  the  assets. 

Thereupon  the  defendant  obtained  an  order  that  the  plaintiff  should 
make  election  whether  he  would  proceed  *n  this  court  or  at  law.  The 
plaintiff  elected  to  proceed  here.  The  defendant  used  very  many  delays 
by  petition  and  contempts  to  put  off  the  hearing  in  this  court,  and  paid 
divers  of  the  debts  which  were  of  the  same  nature  with  the  plaintiff's 
debts,  without  specialty,  pending  the  suit  in  this  court.  The  cause  being 
heard,  it  was  decreed  to  go  to  an  account,  wherein  the  executor  was  to  be 
allowed  all  just  debts  due  by  record  or  specialty,  and  all  debts  without 
specialty,  which  were  paid  before  the  plaintiff's  bill  to  be  allowed ;  but 
not  such  as  were  paid  voluntarily,  pending  the  suit,  or  whereon  volun- 
tary confessed  judgment  were  for  debts  without  specialty. 

The  defendant  got  the  Master  of  the  Rolls,  who  heard  the  cause, 
to  rehear  it,  and  used  other  delays,  and  at  last  appealed  to  the  late  Lord 
Chancellor,  who  made  a  decree  therein;  and  not  content  therewith, 
appealed  to  the  new  Lord  Keeper.     A  case  had  been  stated,  and  the 


114  PAEKER  V.  DEE  [part  l 

cause  being  now  heard  by  the  Lord  Keeper,  the  defendant  pressed  for 
dismission,  because  the  plaintiff  had  the  effect  of  his  suit  to  make  a 
discovery,  and  it  was  his  ignorance  to  choose  to  be  dismissed  before 
such  time  as  he  had  examined  his  witnesses. 

Lord  Keeper,  &c.  There  have  been  six  hearings  in  this  case,  three  on. 
interlocutory  orders,  and  three  on  the  merits;  as  for  the  dismission  to 
law,  because  the  plaintiff  hath  discovery  here;  when  this  court  can 
determine  the  matter  that  shall  not  be  an  hand-maid  to  other  courts,  nor 
beget  a  suit  to  be  ended  elsewhere;  the  defendant  hath  used  great  shift- 
ing, and  showed  great  partiality;  his  plea  at  law  was  false  and  deceitful, 
for  it  appears  he  compounded  debts  at  smaller  value,  and  pleaded  the 
whole  debt  as  due ;  he  compounded  a  debt  of  300  I.  for  a  jewel  200  I. 
value,  and  in  truth  but  worth  100  I.  and  paid  debts  of  the  same  nature  as 
the  plaintiff's,  pending  this  suit,  without  compulsion  by  suit,  which  he 
ought  not  to  have  done;  for  after  the  suit  begun  the  executor  may  not 
excuse  himself  by  any  voluntary  payments;  he  may  use  legal  delays, 
as  imparlance  and  essoins,  &c.  to  prefer  one  creditor  before  another,  but 
he  may  not  do  it  by  false  pleading  of  what  lieth  in  his  own  knowledge; 
otherwise,  if  the  falsity  lie  not  in  his  knowledge,  as  non  est  factum, 
testatorisj  in  this  case  the  plea  was  false  and  fradulent,  and  therefore 
the  plaintiff  here  shall  have  the  same  advantage  as  if  the  same  plea  were 
found  false  by  verdict  at  law,  and  shall  have  all  the  same  consequences 
here  as  follow  on  a  false  plea  at  law  to  all  intents.  And  all  judgments 
voluntarily  confessed  after  his  false  plea  go  for  nothing,  and  decreed 
accordingly,  account  of  assets  with  their  directions ;  but  copyhold  are  no 
assets,  and  the  lands  devised  or  conveyed  to  pay  debts  must  be  in  propor- 
tion equally  of  debts  by  bond  or  otherwise.^ 

^  Spence  speaks  of  this  as  "a  very  special  case."  1  Jurisdiction  of  the  Court 
of  Chancery  679,  n.    (b). 

As  to  this  jurisdiction  he  says:  "In  the  time  of  Elizabeth,  as  will  be  noticed 
hereafter,  the  court  was  in  the  habit  of  retaining  jurisdiction  of  legal  ques- 
tions where  it  was  only  necessary  to  resort  to  the  court  for  Discovery." — Id.  678. 

"And  when  this  court  can  determine  the  matter,  it  shall  not  be  an  hand- 
maid to  the  other  courts,  nor  beget  a  suit  to  be  ended  elsewhere.  And  there- 
tore  whore  a  trial  at  law  was  pressed  for,  whether  there  was  a  new  publica- 
tion or  not,  it  was  said,  the  cause  must  properly  end  here;  and  where  the 
court  has  a  jurisdiction  as  to  the  end,  it  must  have  it  likewise  as  to  the 
means.  And  if  the  court  is  fully  satisfied  as  to  the  evidence,  they  will  not 
send  it  to  a  trial  at  law  at  all." — 1  Fonblanque  Equity  Bk.  6,  ch.  3,  §  6  (text). 

"It  is  true  that  if  certain  facts,  essential  to  the  merits  of  a  claim  purely 
legal,  be  exclusively  within  the  knowledge  of  the  party  against  whom  that 
claim  is  asserted,  he  may  be  required  in  a  Court  of  Chancery  to  disclose 
those  facts,  and  the  court,  being  thus  rightly  in  possession  of  the  cause,  will 
proceed  to  determine  the  whole  matter  in  controversy." — Per  Marshall,  C. 
J.,  in  Russell  v.  Clark's  Ex'rs   (1812)   7  Cranch  69,  89. 

"It  is  a  settled  rule,  that  when  the  Court  of  Chancery  has  gained  jurisdic- 
tiiiM  of  a  cause  for  (uic  ])urpose,  it  may  retain  it  generally." — Per  Spence,  J., 
in    liathbone  r.  Wancii    (ISl.'J)    10  Johns.  ,587,  590. 


CHAP.  III.]  JESUS  COLLEGE  v.  BLOOME  115 


JESUS  COLLEGE  v.  BLOOME. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1745. 

[3  Aihjns  262.] 

The  bill  was  brought  to  have  an  account  and  satisfaction  for  waste, 
in  cutting  down  trees,  against  the  defendant,  an  assignee  of  the  lessee  of 
the  college,  after  an  assignment  of  term,  and  for  the  waste  done  before 
assignment. 

Lord  Chancellor.  Upon  the  opening  of  the  case,  the  bill  seems  im- 
proper, and  an  action  of  trover  is  the  remedy.  Where  the  bill  is  for  an 
injunction,  and  waste  has  been  already  committed,  the  court,  to  prevent 
a  double  suit,  will  decree  an  account,  and  satisfaction  for  what  is  past. 
So,  upon  bills  for  discovery  of  assets,  the  court  will  decree  an  account, 
which  the  party  is  entitled  to  here,  and  is  incident  to  the  other  relief. 

Let  precedents  be  searched,  for  if  there  are  any  I  will  follow  them; 
but  if  none,  I  will  not  make  one:  his  lordship  adjourned  it  to  the  first 
day  of  causes  after  term ;  and  upon  that  day,  Mr.  Hoskins  cited  for  the 
plaintiffs,  1  P.  Wms.  406.  Bishop  of  Winchester  versus  Knight,  and  2 
P.   Wms.  240.     Whitfield  versus  Bewit. 

Lord  Chancellor.  The  first  question  is,  Whether  bills  ought  to  be 
entertained  merely  for  satisfaction  for  timber  cut  down,  after  the  estate 
of  the  tenant  that  cut  it  down  is  determined,  by  assignment  or  other- 
wise, without  praying  an  injunction.  I  am  of  opinion  they  ought  not. 
Waste  is  a  tort,  and  the  remedy  lies  at  law. 

In  an  action  of  waste,  the  place  wasted  is  recovered;  in  an  action  of 
trover,  damages. 

The  ground  of  coming  into  this  court  is,  to  stay  the  waste,  and  not  by 
way  of  satisfaction  for  the  damages,  but  by  way  of  prevention  of  the 
wrong,  which  courts  of  law  cannot  do  in  those  instances  where  a  pro- 
hibition of  waste  will  not  strictly  lie. 

But  in  all  these  cases  this  court  has  gone  further,  merely  upon  the 
maxim  of  preventing  multiplicity  of  suits,  which  is  the  reason  that 
determines  this  court  in  many  cases. 

As  in  bills  for  account  of  assets,  t§c.  that  originally  was  only  a  bill 
for  discovery,  which  cannot  be  had  without  an  account,  and  therefore 
the  court  will  make  a  complete  decree  and  give  the  party  his  debt  like- 
wise. 

So,  in  bills  for  injunctions,  the  court  will  make  a  complete  decree, 
and  give  the  party  a  satisfaction,  and  not  oblige  him  to  bring  an  action 
at  law,  as  well  as  a  bill  here. 

But  nothing  would  tend  to  greater  vexation  than  to  admit  of  such 
bills  as  the  present,  after  the  term  is  at  an  end;  and  I  am  glad  to  find 
there  is  no  precedent. 


116  LYNCH  V.  SUMEALL  [part  i. 

It  does  not  appear  in  the  case  cited  out  of  2  P.  Wms.  that  no  in- 
junction was  prayed,  I  believe  there  was,  and  if  so,  it  is  the  common  case. 

It  is  besides,  different  from  the  present,  because  the  plaintiff  there 
was  only  intitled  to  a  moiety  of  the  mines,  and  of  the  timber;  which 
was  the  principal  matter,  and  therefore  an  account  was  necessary. 

The  other  case  was  the  case  of  a  mine,  which  is  a  sort  of  trade,  and  an 
account  was  therefore  necessary;  and  there  are  many  cases,  where  this 
court  have  made  decrees  in  the  cases  of  mines,  which  they  could  not  have 
done  in  cases  of  timber. 

Therefore  the  present  case  is  reduced  to  this,  that  it  is  a  bill  brought 
by  the  college  to  have  an  account  (after  the  determination  of 
the  tenant's  estate,  he  having  assigned)  of  a  little  timber  cut  down, 
without  praying  an  injunction;  and  I  think  it  is  such  a  bill  as  the  court 
ought  not  to  entertain. 

The  next  question  is,  as  to  costs;  and  I  am  of  opinion,  as  the  plaintiff 
is  not  barred  of  his  remedy  at  law,  he  ought  to  pay  costs :  besides,  what 
the  bill  is  brought  for,  is  of  so  small  value,  as  to  be  beneath  the  dignity 
of  the  court. 

Another  reason  is,  that  this  suit  might  have  been  brought  in  the 
court  of  Grand  Sessions  in  Wales,  which  has  been  often  held,  and  this 
is  a  strong  reason  for  discouraging  bills  here:  therefore  let  the  bill  be 
dismissed  with  costs,  but  without  prejudice  to  any  remedy  the  plaintiff 
may  have  at  law.^ 


LYNCH  V.  SUMRALL. 

In  the  Court  of  Appeals  of  Kentucky,  1819. 

[1  A.  K.  Marshall  468.] 

The  Chief  Justice  [Boyle]  delivered  the  opinion  of  the  court. 

This  was  a  bill  in  chancery,  filed  by  Lynch  against  Sumrall,  in  which 
he  alleges  that  Sumrall  agreed  to  deliver  to  him,  on  a  certain  day,  at 
Louisville,  two  thousand  dollars  worth  of  pork,  at  eleven  dollars  per 
barrel,  for  which  he  was  to  pay  Sumrall  in  bills  of  exchange  drawn  in 
his  favor  by  A.  Burr,  on  G.  M.  Ogden,  of  New  York;  that  he  delivered 
the  bills  to  Sumrall,  and  that  Sumrall  has  failed  to  comply  with  his 
contract  by  delivering  the  pork  on  the  day  agreed  on,  or  at  any  other 
time;  but  that,  for  want  of  the  requisite  proof,  he  cannot  maintain  a 
suit  at  law,  and  therefore  prays  for  a  discovery  and  for  relief.  Sumrall 
answered  and  demurred.    In  his  answer  he  admits,  in  substance,  the  con- 

'  "It  is  like  many  cases  in  this  court,  where  though  the  party  has  a  double 
remedy,  he  shall  not  be  put  to  that  expense;  as  for  instance,  in  a  bill  brought 
for  discovery  of  assets,  after  they  are  discovered,  the  plaintiff  shall  not  be 
turned  over  to  a  suit  of  law,  but  shall  be  decreed  satisfaction  for  his  debt 
here."— Per  Lord  Uardwickc  in  Yates  v.TIamhhj   (1742)   2  Atk.  360,  363. 


CHAP.  III.]  PEARCE   V.   CRESWICK  117 

tract  as  alleged  in  the  bill,  and  tliat  he  failed  to  comply  with  it;  but 
the  circuit  court,  on  the  demurrer,  adjudging  the  case  not  proper  for 
relief  in  a  court  of  equity,  dismissed  the  bill. 

There  can  be  no  doubt  that  the  law  would  afford  to  Lynch  an  adequate 
remedy  for  a  breach  of  the  contract  on  the  part  of  Sumrall,  and  that  if 
a  court  of  equity  can  entertain  jurisdiction  for  the  purpose  of  giving 
relief,  it  must  be  in  consequence  of  the  discovery  that  is  sought.  It  is 
certain  that  a  court  of  equity  will  give  relief  in  some  cases,  on  the 
ground  of  a  discovery  being  sought  where  it  would  not  otherwise  enter- 
tain jurisdiction,  but  it  is  equally  certain  that  it  will  not  do  so  in  every 
case.  The  true  distinction  upon  this  subject  seems  to  be  between  those 
cases  in  which  the  intervention  of  a  jury  is  not,  and  those  in  which  it  is, 
necessary  to  ascertain  the  quantum  of  relief  to  which  the  complainant 
may  be  entitled.  In  the  former  class  of  cases  a  court  of  equity  will  give 
relief,  because  it  can  do  so  by  its  own  proper  means,  without  resorting 
to  foreign  aid;  but  in  the  latter  it  will  not  give  relief,  not  having  the 
power  to  do  so  without  the  aid  of  a  jury,  which  is  a  common  law  tribu- 
nal. The  intervention  of  a  jury  is,  we  apprehend,  indispensably  neces- 
sary to  ascertain  the  quantum  of  damages  which  may  have  accrued  by 
a  breach  of  the  contract  in  the  present  case;  and  if  so,  it  must  be  of 
that  description  of  cases  of  which  a  court  of  equity,  though  it  will  lend 
its  assistance  to  the  remedy  sought  at  law,  by  coercing  a  discovery,  will 
not  entertain  jurisdiction  for  the  purpose  of  giving  relief. 

The  decree,  therefore,  of  the  circuit  court,  dismissing  the  bill  is 
correct,  and  must  be  affirmed,  with  costs.' 


Pearce  v.  Creswick  (1843),  2  Hare  286,  293. — Vice-Chancellor 
WiGRAM.  *  *  *  The  first  proposition  relied  upon  by  the  Plaintiff, 
in  support  of  the  equity  of  his  bill,  was  this, — that  the  case  was  one  in 
which  the  right  to  discovery  would  carry  with  it  the  right  to  relief. 
And,  undoubtedly,  dicta  are  to  be  met  with  tending  directly  to  the  con- 

'  "With  respect  to  the  jurisdiction  of  the  Court,  this  is  clearly  a  bill  of 
discovery,  to  ascertain  what  advances  had  been  made  to  the  other  daughters 
by  the  father,  either  in  his  life  time,  or  by  his  last  will  and  testament:  and, 
that  discovery  being  made,  the  only  remaining  question  is  whether  the  com- 
plainant was  bound  to  dismiss  his  bill,  and  seek  redress  by  a  new  suit,  in 
a  Court  of  Law?  ]\Ir.  Wickham  cited  some  English  authorities  that  seem 
to  favor  the  doctrine;  but  I  believe  the  uniform  practice  in  this  country  has 
been  otherwise;  especially  where  the  subject  matter  is  within  the  cognisance 
of  a  Court  of  Equity,  and  there  be  no  latent  facts,  to  be  inquired  of  by  a  Jury, 
necessary  to  be  found,  in  order  to  enable  the  court  to  give  a  correct  decision. 
And,  even  in  such  a  case,  the  general  practice  is,  for  the  Court  of  Chancery  to 
dnect  an  issue  to  try  any  particular  uncertain  fact  that  mav  be  thought 
material  in  the  cause." — Per  Fleming,  J.  in  Chichester's  Ex'x  v.  Vass's  Admr. 
(1810)    1  Miinf.  98,  117. 


118  PEAECP:  v.  CRESWICK  [part  I. 

elusion,  that  the  right  to  discovery  may  entitle  a  Plaintiff  to  relief 
also.  In  Adley  v.  The  Whitstahle  Company,  Lord  Eldon  says, — "  There 
is  no  mode  of  ascertaining  what  is  due,  except  an  account  in  a  court  of 
equity;  but  it  is  said  the  party  may  have  discovery,  and  then  go  to  law. 
The  answer  to  that  is,  that  the  right  to  the  discovery  carries  along  with 
it  the  right  to  relief  in  equity."  In  Ryle  v.  Haggle,  Sir  Thomas  Plumer 
said, — "  When  it  is  admitted  that  a  party  comes  here  properly  for  the 
discovery,  the  Court  is  never  disposed  to  occasion  a  multiplicity  of  suits, 
by  making  him  go  to  a  court  of  law  for  the  relief."  And,  in  M'Kenzie 
V.  Johnston,  Sir  J.  Leach  says, — "  The  Plaintiff  can  only  learn  from 
this  discovery  of  the  Defendants  how  they  have  acted  in  the  execution 
of  their  agency;  and  it  would  be  most  unreasonable  that  he  should  pay 
them  for  that  discovery,  if  it  turned  out  that  they  had  abused  his  con- 
fidence ;  yet  such  must  be  the  case,  if  a  bill  for  relief  will  not  lie." 

Now,  in  a  case  in  which  I  think  that  justice  requires  the  Court,  if 
possible,  to  find  an  equity  in  this  bill,  to  enable  it,  once  for  all,  to 
decide  the  question  between  the  parties,  I  should  reluctantly  deprive  the 
Plaintiff  of  any  equity  to  which  the  dicta  I  have  referred  to  may  entitle 
him.  But  I  confess  that  the  argument  founded  upon  these  dicta  appears 
to  me  to  be  exposed  to  the  objection  of  proving  far  too  much.  They  can 
only  be  reconciled  with  the  ordinary  practice  of  the  Court,  by  under- 
standing them  as  having  been  uttered  with  reference,  in  each  case,  to 
the  subject-matter  to  which  they  were  applied,  and  not  as  laying  down 
any  abstract  proposition  so  wide  as  the  Plaintiff's  argument  requires. 
I  think  this  part  of  the  Plaintiff's  case  cannot  be  stated  more  highly  in 
his  favour  than  this, — that  the  necessity  a  party  may  be  under  (from 
the  very  nature  of  a  given  transaction)  to  come  into  equity  for  dis- 
covery, is  a  circumstance  to  be  regarded  in  deciding  upon  the  distinct 
and  independent  question  of  equitable  jurisdiction :  further  than  this, 
1  have  not  been  able  to  follow  this  branch  of  the  Plaintiff's  argument.' 

^  Mr.  Fonblanque  in  a  note,  Bk.  1.  ch.  1  §  3.  f.  12,  states  the  following:  "The 
Court  having  acquired  cognizance  of  the  suit,  for  the  purpose  of  discovery, 
will  entertain  it  for  the  purpose  of  relief,  in  most  cases  of  fraud,  account,  ac- 
cident, and  mistake;  and  for  other  reasons  will  entertain  suits  for  partition 
and  dower,  though  discovery  be  not  necessary  to  the  plaintiff's  case."  This 
language  was  modified  by  Hosmer,  Ch.  J.,  in  Isham  v.  Gilbert  (1819)  3  Conn. 
166,  171.  "If  the  defendant  is  bound  to  make  discovery,  and  of  this  there  exists 
no  doubt,  chancery  will  follow  it  up  Avith  relief,  although  a  court  of  equity, 
which  has  acquired  cognizance  for  the  purpose  of  discovery  will  not,  of  course, 
grant  relief;  yet  it  will  do  it  in  most  cases  of  fraud,  account,  accident  and 
trust." 

Tlie  same  author  in  another  part  of  his  work  says:  "To  strike  out  the  dis- 
tinguisliing  principle  upon  which  courts  of  equity  in  such  cases  have  pro- 
ceeded, wouhl  be  indeed  extremely  useful,  but  after  having  given  considerable 
attention  to  the  subject,  I  find  myself  incapable  of  reconciling  the  various 
decisions  upon  it." — 1  Fonblanque  Equity  Bk.  0,  ch.  3.  §  fi.  n.    (r). 

Fpon  ibis  .Tustice  Story  remarks,  "What  the  learned  author  desired  to  as- 


CHAP.  III.]  MILKMAN  V.  ORDWAY  119 


MILKMAN  V.  ORDWAY. 

In  the  Supreme  Judicial  Coitrt  of  Massachusetts,  1870. 
[106  Massachusetts  232.] 

Bill  in  equity,  sworn  to  February  5,  1869,  and  filed  February  6,  1869, 
by  Sarah,  wife  of  Bernard  Milkman,  against  Thomas  T.  Ordway,  George 
F.  Ordway,  and  William  Cumston. 

The  bill  alleged,  in  good  faith,  an  agreement  (sublease)  by  the  terms 
of  which  the  plaintiff  was  to  hold  from  the  Ordways,  themselves  tenants 
of  Cumston,  for  a  specified  time  at  a  specified  rent,  certain  premises  as 
a  store ;  it  further  alleged  that  it  was  intended  to  commit  this  agreement 

certain  has  been  found  equally  embarrassing  to  subsequent  inquirers;  and 
there  is  a  distressing  uncertainty  in  this  branch  of  Equity  Jurisdiction  in 
England."  After  noting  that  in  cases  of  account,  accident  and  mistake  there 
seem  distinct  grounds  upon  which  the  jurisdiction  for  discovery  should  in- 
cidentally carry  the  Jurisdiction  for  relief,  that  is,  either,  the  imperfect 
nature  of  the  legal  remedy,  the  compelling  of  the  production  of  vouchers 
and  documents,  or  the  suppression  of  a  multiplicity  of  suits,  he  further  re- 
marks that  there  are  cases  which  are  not  easy  to  reconcile  with  the  prin- 
ciples applicable  in  the  cases  mentioned. 

"Some  of  them,"  he  continues,  "may  have  been  adjudged  on  their  o^vn 
peculiar  circumstances,  or  they  may  stand  upon  some  ground,  which  leaves 
these  principles  untouched.  Others  are  not  susceptible  of  such  a  classifica- 
tion, and  must  either  be  rejected  altogether,  or  be  admitted  to  a  considerable 
extent  to  overturn  these  principles."  To  this  last  statement,  he  prints  the 
following  note:  — 

"In  Parker  v.  Dee  (2  Chan.  Cas.  200),  the  bill  was  against  an  executor  for 
a  discovery  of  assets,  and  payment;  and  relief  was  decreed  by  Lord  Notting- 
ham. In  Bishop  of  Winchester  v.  Knight  (1  P.  Will.  400),  the  bill  was  for 
a  discovery  and  an  account  of  ore,  dug  by  a  tenant  during  his  life,  and  by  his 
heir,  against  the  executor  and  heir  ;  and  the  court  maintained  the  suit,  direct- 
ing a  trial  at  law,  and  after  the  trial  granted  relief.  In  Story  v.  Lord  Windsor 
(2  Atk.  630),  the  bill  was  for  an  accovmt  of  the  profits  of  a  colliery,  upon  a 
legal  title  asserted  by  the  plaintiff;  Lord  Hardwicke  sustained  the  bill  for  the 
account,  because,  he  said,  this  is  not  a  title  of  land,  but  of  a  colliery,  which  is 
a  kind  of  trade;  and  therefore  an  account  of  the  profits  may  be  taken  here. 
(See  also  Jesus  College  v.  Bloom,  3  Atk.  262.)  The  same  learned  chancellor, 
in  Sayer  v.  Pierce  (I  Ves.  232),  seems  to  have  proceeded  on  the  same  ground, 
holding  that  the  party,  being  out  of  possession  of  lands,  generally,  was  not 
entitled  to  maintain  a  bill  for  an  account  of  profits  alone;  but  he  retained  the 
bill  in  that  case,  directing  a  trial  at  law  upon  the  ground  that  it  asked  to 
ascertain  boundaries.  In  Lee  v.  Alston  (1  Bro.  Ch.  R.  194),  a  bill  for  an 
account  of  timber  cut  by  a  tenant  for  life,  impeachable  for  waste,  was  enter- 
tained by  Lord  Thurlow,  and  relief  granted.  In  Jesus  College  v.  Bloom  (3 
Atk.  262;  s.  c.  Ambler,  R.  54),  which  was  a  bill  for  an  account  and  satis- 


120  MILKMAN  v.  OKDWAY  [part  i. 

to  writing,  but  owing  to  a  mistake  or  fraud  of  the  Ordways  the  plaintiff's 
name  had  been  omitted  from  the  same,  which  omission  rendered  the 
agreement  vague  and  uncertain ;  and  that  through  an  oversight  she  had 
failed  to  note  the  omission.  The  bill,  after  setting  forth  the  agree- 
ment as  it  would  stand  if  reformed  to  express  the  intent  of  the 
parties,  further  alleged  full  performance  on  her  part  of  all  her  obliga- 
tions under  the  agreement ;  that  Cumston  was,  at  the  date  of  making  the 
lease,  fully  informed  of  the  entire  transaction,  and  so  had  no  right  to 
cancel  the  lease  without  the  plaintiff's  consent;  and,  finally,  the  bill 
charged  that  the  Ordways  and  Cumston,  combining  and  confederating, 
and  falsely  jDretending  she  was  in  default  under  the  lease,  had  threatened 
to  cancel  it;  that  they  had  discharged  each  other  from  liability  under 
their  agreements,  and  had  given  her  notice  to  quit  the  premises. 

The  bill  prayed  for  an  answer;  an  injunction  to  restrain  them  from 

faction  for  waste,  in  cutting  down  timber  before  the  assignment,  against  an 
assignee  of  the  lessee  of  the  plaintiffs.  Lord  Hardwicke  said:  'Upon  the  open- 
ing of  the  case,  the  bill  seems  improper,  and  an  action  of  trover  is  the  proper 
remedy.  Where  the  bill  is  for  an  injunction,  and  waste  has  been  already  com- 
mitted, the  court,  to  prevent  a  double  suit,  will  decree  an  account  and  satis- 
faction for  what  is  past.'  And  becavise  the  bill  sought  an  account  only  against 
the  assignee  for  waste  before  the  assignment,  and  without  praying  an  injunc- 
tion, his  lordship  dismissed  the  bill.  The  same  point  was  held  in  Smith  v. 
Cooke  (3  Atk.  R.  378,  381).  In  Geast  v.  Barker  (2  Bro.  Ch.  61),  the  bill  was 
for  a  discovery  of  the  quantity  of  coal  and  coke  sold  from  a  mine  let  by  plain- 
tiff to  defendant  upon  a  reservation  of  one  shilling  for  every  stack  of  coal  sold, 
&c.,  and  prayed  an  issue,  to  try  what  quantity  a  stack  should  contain,  and  sug- 
gested a  custom  of  the  country.  The  Master  of  the  Rolls  (Lord  Kenyon)  said 
it  it  were  now  necessary  either  to  decree  account  or  dismiss  the  bill,  he  would 
do  the  latter,  as  he  was  clear  the  remedy  was  at  law.  (s.  c.  cited  in  Harwood 
V.  Oglander,  6  Ves.  225.)  Why  the  remedy  and  account  should  not  be  given 
in  equity  is  not  stated;  and  it  is  difficult  to  see,  since  it  is  clear  that  the  bill 
was  good  for  the  discovery,  and  it  was  obtained.  In  Sloane  v.  Heatfield 
(Bunb.  R.  18),  the  bill  was  for  a  discovery  of  treasure-trove  and  relief;  and 
the  court  held  it  good  for  discovery,  but  that  the  plaintiff  could  not  have  relief, 
because  he  might  bring  trover  at  law.  In  Ryle  v.  Haggie  (1  Jac.  &  Walk.  234) 
an  opposite  course  was  adopted,  upon  the  professed  ground  of  avoiding  a 
multiplicity  of  suits,  the  party  having  a  good  ground  to  seek  a  discovery,  and 
there  being  a  remedy  at  law.  In  The  Duke  of  Leeds  v.  New  Radnor  (2  Bro. 
Ch.  R.  338,  519),  Lord  Thurlow  reversed  the  decree  of  the  Master  of  the 
Rolls,  denying  relief,  because  there  was  a  remedy  at  law,  upon  the  ground 
that  the  bill  hcing  retained  for  a  year,  the  right  to  grant  relief  in  equity  was 
thus  far  admitted,  and  it  ought  to  give  entire  relief.  See  Mr.  Fonblanque's 
comments  on  this  case,  in  1  Fonbl.  Eq.  B.  1,  ch.  3,  §3,  note  (g) ,  p.  156.  See  Mr. 
Blunt's  note  to  the  case  of  Jesus  College  v.  Bloom,  Ambler,  54;  1  Fonbl.  Eq. 
B,  1,  ch  3,  §3,  note  (g)  ;  ante,  §64  Ic  and  note."  1  Story  Equity  Jurisprudence 
§6G  e<  seq. 

For  a  valuable  discussion  of  the  whole  matter,  see  1  Pomeroy :  Equity  Juris- 
diction, ch.  2j  sees.  2  and  3. 


CHAP.  III.]  MILKMAN  v.  ORDWAY  121 

evicting  her  from  the  premises;  for  a  reformation  of  her  lease  and  a 
decree  of  specific  performance  of  it  when  so  reformed;  and  for  general 
relief. 

It  appeared  by  Cumston's  answer,  and  was  afterwards  established 
in  the  proofs  that  the  Ordway  lease  was  cancelled  three  days  before  the 
bill  was  filed;  that  this  was  done  in  consideration  of  the  cancelling  of 
another  lease  which  had  raised  equities  in  Cumston's  favor;  that  the 
original  Ordway  lease  provided  against  underletting,  with  a  provision 
for  re-entry  and  determination;  and  that  until  after  the  cancellation  of 
the  Ordway  lease,  Cumston  was  ignorant  of  the  plaintiff's  written  lease, 
he  supposing  her  a  tenant  at  will. 

These  circumstances  rendering  impossible  specific  performance  by  the 
Ordways,  it  was  contended  for  them  that  the  bill  should  be  dismissed, 
and  the  plaintiff  put  to  her  remedy  at  law,  which  was  adequate.' 

Wells,  J.  It  is  settled,  with  little  or  no  conflict  of  authority,  that 
when  a  defendant  in  a  bill  in  equity  disenables  himself,  pending  the  suit, 
to  comply  with  an  order  for  specific  relief  the  court  will  proceed  to  afford 
relief  by  way  of  compelling  compensation  to  be  made;  and  for  this  pur- 
pose will  retain  the  bill,  and  determine  the  amount  of  such  compensation, 
although  its  nature  and  measure  are  precisely  the  same  as  the  party 
would  otherwise  recover  as  damages  in  an  action  at  law.  The  character 
of  the  investigation  is,  therefore,  not  an  insuperable  objection  to  this 
mode  of  proceeding. 

There  is  also  authority,  though  apparently  questioned  in  the  English 
decisions,  for  the  application  of  the  same  rule  when  the  disability  was 
caused  before  suit,  but  after  the  date  of  the  agreement  relied  on.  In 
this  country  it  seems  to  be  generally  accepted  as  the  ride,  provided  the 
plaintiff  brought  his  bill  without  knowledge  of  the  disability,  in  good 
faith  seeking  equitable  relief,  supposing  and  having  reason  to  suppose 
himself  entitled  to  such  equitable  relief. 

In  the  opinion  of  a  majority  of  this  court,  there  is  equal  ground  in 
equity  for  applying  the  same  rule,  with  the  same  qualifications,  to  all 
cases  where  a  defect  of  title,  right  or  capacity  in  the  defendant  to  fulfil 
his  contract  is  developed  by  his  answer,  or  in  the  course  of  the  hearing, 
or  upon  reference  of  his  title  or  capacity,  after  an  order  of  fulfilment. 

The  rule  assumes,  of  course,  a  suflicient  contract,  performance  or  an 
offer  to  perform  by  the  plaintiff,  and  every  other  element  requisite,  on 
his  part,  to  the  cognizance  of  his  case  in  chancery;  and  that  the  special 
relief  sought  is  defeated,  not  by  any  defence  or  counter-equities,  but 
simply  because  an  order  therefor  would  be  fruitless,  from  the  inability 
of  the  defendant  to  comply.  The  jurisdiction  is  fixed  by  establishing  the 
equitable  right  of  the  plaintiff.  Relief  might  then  be  given  by  a  decree 
in  the  alternative,  awarding  damages  unless  the  defendant  should  secure 
the  specific  performance  sought.  In  many  cases,  this  would  be  an  effec- 
tive and  proper  course ;  inasmuch  as  the  defendant,  although  not  having 
^  The  statement  of  facts  has  been  abridged. 


122  MILKMAN  v.  ORDWAY  [paut  i. 

himself,  at  the  time,  the  title  or  capacity  requisite  for  such  performance, 
might  be  able  to  procure  it  otherwise.  The  jurisdiction  is  not  lost,  when 
the  court,  instead  of  such  alternative  decree,  determines  to  proceed  di- 
rectly to  an  award  of  damages  or  compensation.  The  i)eculiar  province 
of  a  court  of  chancery  is,  to  adapt  its  remedies  to  the  circumstances  of 
each  case  as  developed  by  the  trial.  It  is  acting  within  that  province 
when  it  administers  a  remedy  in  damages  merely,  in  favor  of  a  plaintiff 
who  fails  of  other  equitable  relief,  to  which  he  is  entitled,  without  fault 
on  his  own  part.  The  diversity  of  practice  in  this  respect,  and  the  doubt 
as  to  the  jurisdiction,  we  think  must  have  arisen  less  from  the  nature  of 
the  relief  to  be  afforded  than  from  the  character  of  the  means  for  deter- 
mining the  amount  of  compensation  to  be  rendered. 

The  usual  mode  of  determining  such  questions  in  chancery  is  by  ref- 
erence to  a  master.  If  however  the  case  be  such  as  to  require  a  jury 
to  assess  the  damages,  or  to  make  that  the  more  appropriate  reference,, 
it  is  then  a  matter  of  convenience  and  discretion  only,  whether  to  order 
such  an  assessment,  upon  an  issue  of  quantum  damnificatus,  or  to  dismiss 
the  bill  and  remit  the  parties  to  a  trial  in  an  action  at  law.  The  reason, 
from  convenience,  for  sending  such  cases  to  an  action  at  law,  which 
often  prevailed  in  the  disposition  made  of  them  in  the  English  practice, 
does  not  exist  under  the  system  in  use  in  this  Commonwealth,  by  which 
chancery  powers  are  vested  in  the  same  court  which  exercises  jurisdic- 
tion at  law.  See  Cory  v.  Thames  Iron  WorliS  &  Shipbuilding  Co.  8  Law 
Times  (N.  S.)  237 ;  Nelson  v.  Bridges,  2  Beav.  239.  So  also  of  the  doubt 
arising  from  the  different  nature  of  the  two  jurisdictions,  and  their  com- 
parative fitness  for  such  investigations.  Bovill  v.  Hitchcock,  Law  Rep. 
3  Ch.  417.  The  objections  to  the  trial  of  such  questions  in  chancery 
proceedings  are  still  further  removed  in  this  Commonwealth,  by  the 
recent  provision  introduced  by  the  practice  act.  Gen.  Sts.  c.  131,  §  60, 
that  "in  proceedings  in  equity  the  evidence  shall  be  taken  in  the  same 
manner  as  in  suits  at  law,  unless  the  court,  for  special  reasons,  other- 
wise directs ;"  as  well  as  by  the  provision  giving  authority  to  order  issues 
of  fact  to  be  tried  by  a  jury  either  at  the  bar  of  the  supreme  judicial 
court  or  of  the  superior  court.    Gen.  Sts.  c.  113,  §  22. 

The  cases  of  Denton  v.  Steicart,  1  Cox  Ch.  258,  and  Greenaway  v. 
Adams,  12  Ves.  395,  which  assert  doctrines  substantially  like  the  prop- 
ositions above  stated,  are  supposed  to  have  been  overruled  by  Lord  Eldon. 
in  Todd  v.  Gee,  17  Ves.  273.  It  is  so  distinctly  declared  by  Lord  Cotten- 
ham  in  Sainsbury  v.  Jones,  5  Myl.  &  Cr.  1.  The  opinions  in  the  two 
latter  cases  do  indeed  restrict  the  right  to  have  damages  assessed  in 
equity,  the  cases  where  the  defendant  has  become  disabled  pendente  lite. 
Lord  Eldon  in  Todd  v.  Gee  indicates  that  Denton  v.  Stewart  decided 
nothing  more  than  that.  But,  in  a  note  to  the  report  of  the  defendants' 
argument  in  the  case,  Denton  v.  Stewart  is  cited  from  the  note  of  Sir 
Samuel  Romniy  as  a  case  where  the  defendant  had  assigned  his  title 
after  the  agreement  with  the  plaintiff;  and  in  Greenaway  v.  Adams,  Sir 


CHAP.  III.]  MILKMAN  v.  OKDWAY  123 

William  Grant  says  of  Benton  v.  Stewart,  "for  in  that  the  inability  of 
the  party  to  perform  the  contract  grew  out  of  an  act  done  by  the  party 
after  the  contract  had  been  entered  into." 

In  Sainshury  v.  Jones,  Lord  Cottenham  speaks  of  Sir  William  Grant's 
case,  Gwillim  v.  Stone,  14  Ves.  128,  as  one  in  which  he  refused  to  follow 
his  own  previous  decision  in  Greenaway  v.  Adams.  But  in  Gwillim  v. 
Stone  Sir  William  Grant  says,  after  referring  to  Denton  v.  Stewart  and 
Greenaway  v.  Adams:  "This  bill  is  of  a  different  nature,  asserting  from 
the  first  that  the  defendant  cannot  make  a  good  title."  So  far  from  re- 
fusing to  follow  his  previous  decision,  he  appears  to  us  not  only  to  affirm 
both  decisions  referred  to,  but  to  indicate  where  the  true  line  of  distinc- 
tion is  to  be  found.  That  distinction  turns  upon  the  character  of  the 
claim  which  the  plaintiff  establishes,  and  not  upon  the  time  or  mode  in 
which  the  defendant  became  unable  to  respond  to  a  decree  of  the  court 
for  specific  relief. 

If,  at  the  time  the  bill  is  filed,  the  plaintiff  is  aware  that  the  defendant 
is  unable  to  fulfil  his  contract,  and  that  he  can  therefore  have  no  equit- 
able relief,  "  it  is  then  reduced  to  the  case  of  a  bill  filed  for  the  sole 
purpose  of  assessing  damages  for  a  breach  of  contract."  Per  Kent,  C., 
in  Kempshall  v.  Stone,  5  Johns.  Ch.  193.  Chancellor  Kent  regarded  "such 
knowledge  a  material  circumstance  in  the  case."  The  same  considera- 
tion is  mentioned  in  Hatch  v.  Cohh,  4  Johns.  Ch.  559.  See  also  Mc- 
Queen V.  Chouteau,  20  Missouri,  222.  In  Phillips  v.  Thompson,  1  Johns. 
Ch.  131,  and  Parl-hurst  v.  Van  Cortlandt,  lb.  273,  the  bill  was  retained 
for  assessment  of  damages  only,  upon  the  principle  of  the  decision  in 
Denton  v.  Stewart;  and  the  authority  of  that  case  was  distinctly  recog- 
nized. The  same  eminent  chancellor,  in  the  case  of  Woodcoch  v.  Bennet, 
1  Cowen,  Yll,  ordered  a  reference  to  a  master  to  assess  damages,  because, 
since  the  execution  of  the  agreement,  the  defendant  had  disenabled  him- 
self to  perform  it.  In  the  court  of  errors,  the  bill  was  dismissed  upon 
other  grounds;  but  the  opinion  delivered  by  Woodworth,  J.,  approves  of 
the  doctrine  of  Denton  v.  Steivart,  upon  which  the  reference  was  ordered. 
In  Morss  V.  Elmendorf,  11  Paige,  277,  the  principle  is  suggested  as 
broadly,  and  substantially  in  the  terms  and  with  the  limitations,  as  we 
have  stated  it;  and  again  in  Wiswall  v.  McGowan,  Tloffm.  Ch.  125, 
where  it  is  ably  discussed,  and  the  authorities,  particularly  those  in 
New  York,  collated.  This  last  decision  was  reversed  by  the  supreme 
court  in  2  Barb.  270;  but,  upon  appeal,  the  case  was  disposed  of  ulti- 
mately upon  other  grounds,  (see  6  Selden,  465,)  and  the  principle  of 
Denton  v.  Stexvart  and  ^Yoodcoclc  v.  Bennet  was  soon  after  asserted  in 
the  supreme  court.     Woodivard  v.  Harris,  2  Barb.  439. 

The  case  of  Denton  v.  Steivart  is  not  without  support  from  early 
English  authorities.  See  Hedges  v.  Everard,  1  Eq.  Cas.  Ab.  18,  pi.  7; 
Cud  V.  Butter,  1  P.  W.  570;  WilUnson  v.  TorUngton,  2  Y.  &  Col.  Exch. 
726. 

Its  doctrine  is  fully  adopted  in  Massachusetts:  Peahody  v.  Tarhell, 


124  LYNCH  V.  METROPOLITAN  EL.  RY.  CO.         [part  i. 

2  Cush.  226;  Andrews  v.  Brown,  3  Cush.  130;  Pingree  v.  Coffin,  12  Gray, 
288,  305;  Attorney  General  v.  Deerfield  River  Bridge  Proprietors,  105 
Mass.  1;  and  by  other  courts  in  this  country:  Bees  v.  Smith,  1  Ohio,  124; 
Gihhs  V.  Champion,  3  Ohio,  335;  Jojies  v.  Shackleford,  2  Bibb,  410; 
Fisher  v.  Kay,  lb.  434;  Slaughter  v.  Tindle,  1  Littell,  358;  Rankin  v. 
Maxwell,  2  A.  K.  Marshall,  488;  Copper  v.  Wells,  Saxton,  10;  Berry  v. 
Van  WinMe,  1  Green  Ch.  269. 

In  England,  authority  to  the  full  extent  which  we  have  maintained  in 
this  opinion  has  been  recently  conferred  upon  courts  of  chancery,  or  de- 
clared to  belong  to  them,  by  St.  21  &  22  Vict.  c.  27.  This  statute  was 
rendered  necessary  by  the  doubts  as  to  that  authority,  which  have  been 
entertained  in  consequence  of  the  opinion  of  Lord  Eldon  as  expressed  in 
Todd  V.  Gee.  We  do  not  regard  the  statute  as  necessary  for  that  pur- 
pose, except  by  reason  of  such  doubts ;  being  satisfied  that  the  authority 
belongs  to  the  courts  as  incident  to  its  chancery  jurisdiction,  and  essen- 
tial to  the  complete  exercise  of  that  jurisdiction.  The  second  section  of 
the  statute  is  as  follows :  "In  all  cases  in  which  the  court  of  chancery 
has  jurisdiction  to  entertain  an  application  for  an  injunction  against  a 
breach  of  any  covenant,  contract  or  agreement,  or  against  the  commission 
or  continuance  of  any  wrongful  act,  or  for  the  specific  performance  of 
any  covenant,  contract  or  agreement,  it  shall  be  lawful  for  the  same 
court,  if  it  shall  think  fit,  to  award  damages  to  the  party  injured,  either 
in  addition  to  or  in  substitution  for  such  injunction  or  specific  per- 
formance; and  such  damages  may  be  assessed  in  such  manner  as  the 
court  shall  direct.  This  statute  is  held  to  apply  only  to  cases  which  are 
of  equitable  cognizance  in  their  essential  character.  Durell  v.  Pritchard, 
Law  Rep.  1  Ch.  244. 

In  New  York,  the  right  of  the  plaintiff  in  a  bill  in  equity  to  have 
damages  assessed,  instead  of  specific  relief,  is  now  held  to  be  even  much 
more  extensive,  under  the  code  of  practice  in  force  there.  Barlow  v.  Scott, 
24  N.  Y.  40.    Genet  v.  Howland,  45  Barb.  560.' 


Section  5.    Multiplicity  of  Suits. 


LYNCH  V.  METROPOLITAN  ELEVATED  RAILWAY  CO. 

In  the  Court  of  Appeals  of  New  York,  1891. 

[129  New  York  274.] 

Gray,  J.  This  action  was  brought  to  restrain  the  maintenance  and 
operation  of  the  defendants'  roads  in  front  of  the  plaintiff's  premises, 
and  the  prayer  for  such  a  judgment  included  also  a  demand  for  the 
amount  of  loss  and  damage  which  might  be  ascertained  to  have  been 

'  The  balance  of  tlie  opinion  discussing  the  facts  of  the  case  has  been  omitted. 


CHAP,  in.]      LYNCH  v.  METROPOLITAN  EL.  RY.  CO.  125 

already  sustained  by  the  plaintiff.  The  complaint  sets  out  the  title  and 
ownership  of  the  plaintiff  and  his  rights  in  and  to  the  street  in  front  of 
liis  premises ;  the  construction  of  the  elevated  railroad  and  the  operation 
of  trains  over  it  and  the  annoying'  results  therefrom;  the  illegal  and  un- 
authorized nature  of  the  trespass  upon  the  plaintiff's  premises  and  ease-- 
ments,  and  the  failure  of  the  defendants  to  acquire,  or  to  make  compen- 
sation for  them;  the  injuries  sustained,  and  that  they  will  be  constant 
and  continuous,  and,  finally,  that,  to  prevent  a  multiplicity  of  suits,  to 
protect  against  irreparable  damages  and  to  afford  complete  relief,  the 
plaintiff  is  compelled  to  seek  the  equitable  interference  of  the  court. 
When  the  action  came  on  for  trial,  the  defendants'  counsel  moved  for 
a  trial  of  the  plaintiff's  claim  for  past  damages  by  jury,  and  the  excep- 
tion to  the  denial  of  that  motion  raises  the  main  question  presented  upon 
this  appeal. 

The  clause  of  the  Constitution,  upon  which  the  demand  for  a  jury 
trial  was  based  reads:  "The  trial  by  jury,  in  all  cases  in  which  it  has 
heretofore  been  used,  shall  remain  inviolate  forever."  The  argument 
for  the  appellants  is,  in  substance,  that  there  were  two  independent 
causes  of  action  stated  in  the  complaint ;  of  which  one  was  for  past 
■damages,  which,  prior  to  the  Constitution  of  184G,  was  cognizable  solely 
in  a  court  of  law,  and  that  under  the  Code  it  comes  within  the  equity 
jurisdiction  of  the  court  only  by  reason  of  the  permission  to  join  in  one 
complaint  legal  and  equitable  causes  of  action.  By  section  970  of  the 
Code  of  Civil  Procedure,  which  was  a  new  enactment,  it  is  provided  that 
"where  a  party  is  entitled  by  the  Constitution,  or  by  express  provision  of 
law,  to  a  trial  by  a  jury  of  one  or  more  issues  of  fact  *  *  *  he  may 
apply  upon  notice  to  the  court  for  an  order  directing  all  the  questions 
arising  upon  that  issue  to  be  distinctly  and  plainly  stated  for  trial  ac- 
cordingly," whereupon  the  court  must  so  order,  etc.  If  the  defendants 
believed  that  they  had  a  constitutional  right  to  a  jury  trial  of  some  issue 
of  fact  in  this  action,  it  would  have  been  the  natural  and  orderly  way 
for  them  to  make  an  application  to  the  court  under  this  section.  The 
complaint  appears  to  be  but  one  consecutive  narrative  of  the  grounds 
upon  which  the  equitable  interference  of  the  court  is  alleged  to  be  nec- 
essary. The  pretense  that  there  is  a  separate  cause  of  action  rests  only 
upon  the  demand  of  the  complainant  that,  if  he  is  entitled  to  the  equit- 
able relief  of  an  injunction,  the  court  shall  adjudge  to  him  such  an 
amount  for  the  loss  sustained  by  the  defendants'  acts  as  shall  be  as- 
certained. 

Undoubtedly,  the  claim  for  past  damages,  sustained  by  plaintiff  in 
his  property  rights  from  the  defendants'  acts,  could  have  been  made  the 
subject  of  an  action  at  law;  but  that  was  not  the  cause  of  action  which 
the  plaintiff  elected  to  assert  in  his  complaint  and  to  bring  to  trial.  What 
he  attempted  by  instituting  his  action  was  to  restrain  the  continuance 
of  acts,  which  were  constantly  injuring  and  would,  to  all  appearances, 
constantly  in  the  future  continue  to  injure  him,  in  ways  and  in  a  man- 


126  LYNCH  V.  METROPOLITAN  EL.  RY.  CO.         [part  i. 

ner  which  he  described  in  his  complaint.  That  was  a  form  of  relief  de- 
mandable  and  cognizable  only  on  the  equity  side  of  the  court.  Hence, 
as  upon  the  face  of  the  complaint,  the  plaintiff  alleged  a  cause  of  action 
for  equitable  relief,  if  the  defendants  conceived  that  they  were  entitled 
to  a  trial  by  jury  of  any  issue  of  fact  involved  in  the  statements  of  the 
complaint,  they  might  have  moved  the  court  under  section  970,  and  then 
the  question  could  have  been  opportunely  and  properly  met.  Appellants 
cite  upon  this  point  the  decision  in  Coleman  v.  Dixon  (50  N.  Y.  572),  but 
that  was  made  in  1872,  and  section  970  was  a  new  provision  and  was  en- 
acted in  1877. 

But,  whatever  the  effect  of  the  omission  to  take  this  course  of  pro- 
cedure, we  need  not  determine  it  now;  inasmuch  as  the  conclusion  we 
have  reached  holds  the  right  to  a  separate  trial  by  jury,  as  to  the  amount 
of  past  damages,  in  such  an  action  not  to  be  within  the  purview  of  the 
constitutional  guaranty.  The  action  was  one  purely  for  a  court  of 
equity;  for  the  main  relief  sought  was  an  injunction  against  the  de- 
fendants, restraining  them  from  maintaining  and  operating  their  ele- 
vated railroad.  To  the  assertion  of  this  ground  for  the  equitable  inter- 
ference of  the  court,  the  facts  in  the  complaint  were  marshalled,  and 
to  the  necessity  for  granting  that  species  of  relief  every  allegation  of  the 
complaint  was  framed  and  calculated  to  lead.  There  was  but  one  cause 
of  action  stated  in  this  complaint,  and  that  was  the  claim  for  relief 
against  the  continued  trespass  upon  the  complainant's  properties.  The 
demand  for  past  damages,  included  in  the  prayer  for  judgment,  does 
not  have  the  effect  to  set  up  an  independent  cause  of  action.  It  is  noth- 
ing more  than  a  demand  that  the  court,  having  adjudged  the  plaintiff 
entitled  to  the  equitable  relief  prayed  for,  and  having  acquired  entire 
jurisdiction  of  the  action,  will  assess  the  damages  which  appear  to  have 
been  sustained  down  to  the  trial. 

It  has  always  been  a  well-settled  and  familiar  rule  that  when  a  court 
of  equity  gains  jurisdiction  of  a  cause  before  it  for  one  purpose,  it  may 
retain  it  generally.  To  do  complete  justice  between  the  parties  a  court 
of  equity  will  further  retain  the  cause,  for  the  purpose  of  ascertaining 
and  awarding  the  apparent  damages,  as  something  which  is  incidental 
to  the  main  relief  sought.  While  this  is  done  on  the  ground  that  the 
remedy  for  the  damage  done  is  deemed  to  be  incidental  to  the  relief  of 
injunction,  the  principle  is  in  perfect  harmony  with  the  theory  of  the 
jurisdiction  of  a  court  of  equity.  Its  power  is  invoked,  and  it  inter- 
feres to  restrain  a  trespass,  which  is  continuous  in  its  nature,  in  order 
to  prevent  a  multiplicity  of  suits,  and,  taking  jurisdiction  of  the  cause 
for  such  a  purpose,  it  may  retain  it  to  the  end  and  close  up  all  matters 
for  legal  dispute  between  the  parties  by  assessing  the  loss  sustained  from 
the  acts  which  it  has  restrained. 

The  power  and  practice  of  courts  of  equity  were,  as  it  was  forcibly 
remarked  by  Judge  Earl  in  the  case  of  Madison  Avenue  Baptist  Church 
v.  Oliver  Street  Baptist  Church   (73  N.  Y.  82,  95)  :  ''When  they  have 


CHAP.  III.]      LYNCH  V.  METROPOLITAN  EL.  RY.  CO.  127 

once  obtained  jurisdiction  of  a  case  to  administer  all  the  relief  which  the 
nature  of  the  case  and  the  facts  demand,  and  to  bring  such  relief  down 
to  the  close  of  the  litigation  between  the  parties." 

The  fact  that  a  money  judgment  is  ordered  against  the  defendant  for 
the  plaintiff's  loss  affords  no  i)eculiar  ground  for  attacking  equity's  juris- 
diction. That  is  frequently  the  case  in  actions  of  an  unquestioned  equit- 
able nature.  Quite  recently  Judge  EI^'c^,  in  Van  Rensselaer  v.  Van 
Rensselaer  (113  N.  Y.  207),  observed  with  respect  to  an  objection  to  the 
jurisdiction  of  a  court  of  equity  that  the  final  relief  would  be  a  per- 
sonal judgment,  that  it  should  not  in  that  manner  lose  its  juris- 
diction of  an  action  of  an  equitable  character.  The  jurisdiction  ''once 
acquired,"  he  said,  "it  retains  to  the  end,  even  though  it  may  turn  out 
that  adequate  relief  is  reached  by  a  merely  personal  judgment.  That 
is  not  an  uncommon  occurrence." 

Instances  are  frequent  in  which  a  court  of  equity  decrees  the  payment 
of  money  as  an  incident  of  the  grant  of  equitable  relief,  and  that  feature 
does  not  suffice  to  qualify  the  jurisdiction.  But  I  think  we  should  con- 
sider the  question  to  have  been  settled,  upon  the  authority  of  several 
decisions  of  this  court.  In  the  case  of  Williams  v.  New  York  Central 
Railroad  Company  (16  N.  Y.  97),  the  opinion  was  delivered  by  Judge 
Saimuel  Selden.  That  was  a  suit  in  equity,  brought  to  restrain  the  de- 
fendants from  using  the  street  with  their  railway  and  to  recover  dam- 
ages for  past  use.  The  conclusion  arrived  at,  as  expressed  in  the  opinion, 
was   that  "it   follows  that   the   defendants   in  constructing   their    road 

*  *  *  were  guilty  of  an  unwarrantable  intrusion  and  trespass  upon 
the  plaintiff's  property,  and  that  he  is  entitled  to  relief.  Although  he 
had  a  remedy  at  law  for  the  trespass,  yet,  as  the  trespass  was  of  a  con- 
tinuous nature,  he  had  a  right  to  come  into  a  court  of  equity  and  to 
invoke  its  restraining  power,  to  prevent  a  multiplicity  of  suits,  and  can, 
of  course,  recover  his  damages  as  incidental  to  this  equitable  relief. 
There  may  be  doubt  as  to  his  right  to  recover  in  this  suit  the  damages 
upon  the  lots  which  have  been  sold ;  because  as  to  those  lots  there  was  no 
occasion  to  ask  any  equitable  relief,  and  to  permit  the  damages  to  be 
assessed  in  this  suit,  in  effect,  deprives  the  defendants  of  the  right  to 
have  them  assessed  by  a  jury.  But,  as  this  question  has  not  been  raised, 
it  is  unnecessary  to  consider  it." 

There  are  two  things  to  be  noted  in  that  opinion.  In  the  first  place, 
the  damages  already  sustained  were  deemed  within  the  power  of  a  court 
of  equity  to  award,  as  an  incident  of  its  jurisdiction  over  the  action. 
This  idea  is,  in  fact,  emphasized  by  the  suggestion  as  to  the  lots  which 
had  been  sold;  because  it  is  clear  that  the  court  regarded  its  right  to 
award  the  damages  as  a  matter  connected  with,  or  dependent  upon,  the 
ground  for  granting  any  equitable  relief;  that  is  to  say,  as  to  the  prop- 
erty to  be  protected  by  the  decree  of  the  court  against  the  defendants' 
acts,  the  damages  caused  to  it  could  be  assessed  by  the  court;  but  as 
to  that  portion  withdrawn  by  the  sale  it  might  be  doubtful,  because  not 


128  LYNCH  V.  METKOPOLITAN  EL.  RY.  CO.         [part  i. 

the  subject  of,  or  entitled  to,  the  equitable  relief.  It  is  very  obvious 
that  the  court  had  in  mind  the  question  as  to  the  right  of  trial  by  jury. 
In  the  second  place,  it  may  be  noted  that  the  opinion  speaks  of  the 
assessment  of  the  damages.  This  definition  of  an  assessment  of  the  dam- 
ages seems  to  me  to  put  the  action  of  the  court  in  line  with  just  what 
courts  of  equity  have  always  done  in  cases  over  which  they  have  gained 
jurisdiction ;  that  is  to  say,  they  proceed  to  inquire  directly,  or  by  refer- 
ence, or  otherwise,  as  to  the  damages  sustained  and  assess  them  accord- 
ingly. When,  later,  the  same  case,  entitled  as  Henderson  et  ah,  after  a 
new  trial,  came  up  again  (78  N.  Y.  423),  the  opinion  of  the  court  was  de- 
livered by  Judge  Danforth,  who  again  upheld  the  plaintiff's  right  to  in- 
voke the  equitable  power  of  the  court,  and  held  that  he  could,  "of  course, 
recover  his  damages  as  incidental  to  this  equitable  relief;"  and  he  stated 
it  to  be  "  an  elementary  principle  "  that  "  when  a  court  assumes  jurisdic- 
tion in  order  to  prevent  a  multiplicity  of  suits  it  will  proceed  to  give  full 
relief  both  for  the  tortious  act  and  the  resulting  damages."  The  opinion 
was  carefully  written  and  based  upon  the  authority  of  many  cases. 

Recently,  again,  in  the  case  of  Shepard  v.  Man.  R.  Co.  (117  N.  Y.  442), 
it  was  said  of  these  actions  that  they  were  necessarily  "on  the  equity 
side  of  the  court,  as  the  main  relief  sought  was  the  injunction  against 
the  defendants,"  and  that  in  them  the  complainants  could  "recover  the 
damages  they  have  sustained  as  incidental  to  the  granting  of  the  equit- 
able relief."  This  view,  as  stated  in  that  opinion,  was  expressly  based 
upon  the  Williams  and  Henderson  cases  and  upon  the  supposed  equitable 
principles  governing  such  actions. 

The  Shepard  case,  somewhat  conspicuously,  illustrates  the  powers  a 
court  of  equity  may  arrogate  to  itself  with  the  object  of  completely  de- 
termining and  quieting  the  questions  before  it,  when  it  has  once  acquired 
jurisdiction  of  the  action.  It  follows,  in  that  respect,  a  rule  long  estab- 
lished by  authority.  It  is  true  that  in  these  cases  the  right  to  demand 
a  jury  trial  as  to  past  damages  was  not  precisely,  or  in  terms,  stated  as 
the  proposition  advanced;  but  that,  as  it  seems  to  me.  would  be  a  very 
narrow  evasion  of  the  effect  of  the  opinion  delivered.  They  did  consider 
the  nature  of  such  actions  and  deliberately  declared  the  power  of  the 
court  in  equity,  as  an  incident  of  the  main  relief  of  injunction,  to  assess 
the  damages  sustained. 

In  Carpenter  v.  Oshorn  (102  N.  Y.  552),  the  court,  in  an  action  to  set 
aside  certain  conveyances  as  fraudulent,  granted  the  equitable  relief 
prayed  for,  and,  in  addition,  decreed  the  judgment  a  lien  upon  the  land 
for  some  impaid  installments  of  interest,  to  the  payment  of  which  the 
defendant  had  obligated  himself  in  a  certain  agreement.  Chief  Judge 
RucKR  delivered  the  opinion  of  this  court  in  affirmance  of  the  judg- 
ment and  said:  "I'his  principle  has  been  applied  in  many  cases,  in 
awarding  judgment  for  pecuniary  damages,  even  when  the  party  had  an 
adequate  remedy  at  law,  if  the  damages  were  connected  with  a  trans- 
ftcti'on  over  which  the  courts  had  jurisdiction  for  any  purpose;  although 


ciiAi".  111.]      LYNCH  V.  METKOPOLITAN  EL.  RY.  CO.  129 

for  the  purpose  of  collecting  damages  merely  they  would  not  have  had 
jurisdiction."  In  support  of  the  principle  declared  by  him,  the  learned 
judge  cited  Pomeroy's  Equity  Jurisprudence  (§  181),  and  various 
cases. 

I  think  some  confusion  of  thought  concerning  the  constitutional  guar- 
anty of  a  trial  by  jury  may  arise  in  a  misapprehension  as  to  its  proper 
application.  That  provision  relates  to  the  trial  of  issues  of  fact  in  civil 
and  criminal  proceedings  in  the  courts;  as  it  was  held  by  the  chancellor 
in  the  case  of  Beekman  v.  Saratoga  &  8.  Railmad  Co.  (3  Paige,  45). 
Where  the  trial  of  a  civil  proceeding  presents  for  determination  a  ques- 
tion of  fact,  the  right  of  trial  by  jury  is  proper  and  can  be  invoked.  But 
an  action  brought  to  restrain  the  commission  of  trespasses,  which  are 
continuous  in  their  nature,  is  necessarily  in  equity,  and  the  court  in- 
terferes, to  prevent  multiplicity  of  suits,  and  grants  equitable  relief  by 
way  of  an  injunction.  The  question  presented  for  determination  in 
such  an  action  is  one  of  law,  whether,  upon  the  facts  to  be  established 
upon  the  trial,  the  plaintiff  is  entitled  to  such  relief.  Upon  the  proofs, 
showing  the  nature  of  the  trespasses,  and  the  consequent  injury  to  the 
complainant's  property,  the  court  decides  the  question  of  plaintiff's 
right  to  an  injunction.  It  does  not  seem  to  me  that  it  can  be  said  that 
any  issue  of  fact  as  to  damage  remains.  That  was  necessarily  decided 
in  the  action,  and  all  that  remains  is  to  fix  its  amount;  and  I  do  not 
think  the  constitutional  provision  was  aimed  at  such  a  proceeding.  As 
defined  by  the  chancellor  in  the  case  above  referred  to,  it  seems  difficult 
to  rationally  give  it  an  application  to  what  is  simply  an  assessment  of 
the  damages. 

I  may  extract,  and  may  appositely  quote  here,  a  remark  of  Judge 
Andrews  in  his  opinion  in  Cogswell  v.  iV.  Y.,  N.  H.  &  H.  Railroad  Com- 
pany (105  N.  Y.  319)  :  "  We  think,"  he  says,  "it  is  a  reasonable  rule,  and 
one  in  consonance  with  the  authorities,  that  where  a  plaintiff  brings  an 
action  for  both  legal  and  equitable  relief,  in  respect  to  the  same  cause  of 
action,  the  case  presented  is  not  one  of  right  triable  by  jury  under  the 
Constitution."  The  case  was  one  wherein  the  plaintiff's  complaint  de- 
manded judgment  for  damages  and  an  abatement  of  a  nuisance,  and 
also  for  an  injunction  against  its  continuance.  The  learned  judge's 
opinion  is  upon  the  question  of  whether  such  an  action  was  one  for  a 
nuisance,  under  section  968  of  the  Code,  which  must  be  tried  by  jury, 
unless  waived  or  referred,  and  he  held  that  it  differed  from  Hudson  v. 
Caryl  (44  N.  Y.  553),  which  was  a  common-law  action,  in  that  equitable 
relief  by  way  of  injunction  was  asked,  and  not  simply  the  relief  obtain- 
able by  writ  of  nuisance  for  damages  and  an  abatement.  His  remark 
upon  the  right  to  a  jury  trial  in  equitable  actions  is  not  out  of  place, 
however,  here. 

To  carry  this  discussion  backwards,  and  to  a  time  anterior  to  decisions 
of  this  court,  we  find  warrants  in  the  opinions  then  held  by  our  own 
and  the  English  chancery  courts  for  holding  that  a  trial  by  jury  was 


130  LYNCH  V.  METROPOLITAN  EL.  RY.  CO.         [part  i. 

not  usual  in  cases  where  equity  had  acquired  jurisdiction,  and  that  the 
court  would  administer  all  the  relief  which  the  facts  warrented,  in- 
cluding the  assessment  and  awarding  of  compensation  for  injury  sus- 
tained. In  ^ya^son  v.  Hunter  (5  Johns.  Ch.  109),  the  bill  was  filed  to 
enjoin  the  cutting  of  timber  and  to  restrain  the  removal  of  that  which 
had  already  been  cut.  Chancellor  Kent  confined  the  relief  of  injunc- 
tion to  the  timber  standing,  and  refused  it  as  to  the  removal  of  the  cut 
timber,  on  the  ground  that  it  would  be  an  application  to  an  "incidental 
remedy."  He  said  that  "the  practice  of  granting  injunctions  in  cases 
of  waste  is  to  prevent  or  stay  the  future  commission  of  waste;  and  the 
remedy  for  waste  already  committed  is  merely  incidental  to  the  juris- 
diction in  the  other  case,  assumed  to  prevent  multiplicity  of  suits  and 
to  save  the  party  the  necessity  of  resorting  to  trover  at  law." 

The  chancellor's  exposition  of  the  principle  upon  which  equity  acts 
in  cases  of  waste,  obviously,  is  as  applicable  to  cases  of  trespass.  If  the 
action  at  law  in  trover  was  deemed  unnecessary  for  the  personal  property 
already  converted  in  that  case,  it  seems  unnecessary  in  such  an  action  as 
this,  in  order  to  recover  the  loss  sustained  from  the  trespass.  The  chan- 
cellor in  the  Watson  case  relied  upon  the  practice  followed  by  the  Eng- 
lish chancellors.  Lord  IIardwicke,  in  Garth  v.  Cotton  (1  Vesey,  Sr., 
528),  had  held  that  the  decree  for  the  waste  already  committed  was  an 
incident  to  the  injunction  to  stay  waste.  Before  that,  in  Jesus  Col- 
lege V.  Bloom  (3  Atk.  262),  where  the  bill  was  filed  for  an  account  and 
satisfaction  for  waste  in  cutting  trees,  and  no  injunction  was  prayed 
for,  Lord  Hardwicke  said  that  the  bill  was  improper  and  that  an  action 
of  trover  was  the  remedy.  He  asserted  the  rule,  however,  that  where 
the  bill  was  for  an  injunction  to  prevent  waste,  and  for  waste  already 
committed,  the  court,  to  prevent  a  double  suit,  would  award  an  injunc- 
tion to  prevent  future  waste  and  decree  an  account  and  satisfaction  for 
what  was  past.  He  held  that  to  prevent  multiplicity  of  suits  the  coiirt 
will,  on  bills  for  injunction,  make  a  complete  decree  and  give  the  injured 
party  a  satisfaction  for  what  had  been  done,  and  not  oblige  him  to  bring 
another  action  at  law.  In  the  subsequent  case  of  Smith  v.  Coohe  (3  Atk. 
381),  the  same  lord  chancellor  declared  the  same  doctrine;  as  did  also 
Lord  Thurlow  in  Lee  v.  Alston  (1  Ves.  78).  I  quote  a  remark  of  Lord 
Nottingham,  in  Parker  v.  Doe  (2  Ch.  Cases,  201),  that  when  a  Court  of 
Chancery  has  once  gained  possession  of  the  cause,  if  it  can  determine 
the  whole  matter,  it  will  not  be  the  handmaid  of  other  co\u-ts.  "nor  beget 
a  suit  to  be  ended  elsewhere." 

In  our  former  Court  of  Errors,  Chancellor  (then  Judge)  Kent  held,  in 
Armstrong  v.  Gilchrist  (2  Johns.  Cases,  424,  431,  decided  in  1800),  that 
"the  Court  of  Chancery,  having  acquired  cognizance  of  a  suit  for  the 
purpose  of  discovery  or  injunction,  will,  in  most  cases  of  account,  when- 
ever it  is  in  full  possession  of  the  merits  and  has  sufficient  materials 
before  it,  retain  the  suit  in  order  to  do  complete  justice  botwoen  tlie 
parties  and  to  prevent  useless  litigation  and  ex])ons(>."     'I'lint   case  was 


CHAP.  III.]      LYNCH  V.  METROPOLITAN  EL.  RY.  CO,  131 

upon  a  bill  for  specific  relief  and  to  restrain  an  action  at  law  brought 
to  recover  the  value  of  certain  bank  stock,  and  it  set  up  certain  equitable 
considerations  as  against  the  justice  of  a  recovery  in  the  other  action.  The 
chancellor  below  decided  against  the  whole,  relief  sought  by  the  bill,  and 
decreed  in  favor  of  the  defendants  that  the  complainants  should  pay 
them  the  value  of  the  stock  and  ordered  a  reference  to  state  the  account. 
This  procedure  the  Court  of  Errors  ujiheld  as  being  right  and  the  duty 
of  the  chancellor  to  follow. 

I  do  not  consider  the  cases  cited  by  the  appellants  to  be  at  all  con- 
trolling upon  the  question.  In  Murray  v.  Hay  (1  Barb.  Ch.  59),  the  bill 
was  filed  by  two  persons,  who  were  owners  of  different  dwelling-houses, 
in  severalty,  having  no  joint  interest  in  either  of  them,  to  restrain  a 
nuisance  which  was  a  common,  but  not  a  joint,  injury  to  both  complain- 
ants. The  objection  to  the  prayer  for  an  account  and  compensation  for 
their  respective  damages  was  upon  the  ground  of  multifariousness,  and 
so  considered.  Another  case  of  Hudson  v.  Caryl,  (44  N.  Y.  553),  was 
an  action  to  recover  damages  for  the  overflowing  of  plaintiff's  lands  and 
to  compel  the  removal  of  the  dam ;  and  the  decision  turned  upon  the 
ancient  right  to  a  jury  trial,  in  such  an  action  of  nuisance,  which  the 
Code  had  not  affected.  It  was  not  an  action  in  equity  to  restrain  a  nui- 
sance, which,  according  to  Judge  Andrews'  opinion  in  the  Cogswell 
case  {supra),  would  not  be  an  action  for  a  nuisance  directed  by  the 
Code  to  be  tried  by  jury. 

But  the  judge  who  delivered  the  opinion  of  the  majority  of  the  Com- 
mission of  Appeals,  in  Hudson  v.  Caryl,  spoke  obiter  in  his  remarks  upon 
the  general  right  of  trial  by  jury,  as  his  opinion  indicates,  for  he  says 
(p.  555)  :  "But  whatever  may  be  said  or  decided  in  regard  to  the  trial  of 
other  actions,  in  which  two  causes  of  action,  one  exclusively  of  legal  and 
another  exclusively  of  equitable  cognizance,  arising  out  of  the  same 
transaction,  are  united,  this  action  should,  for  an  independent  reason, 
have  been  tried  by  jury,  and  that  is,  that  the  action,  when  brought  for 
the  double  object  of  removing  the  nuisance  and  recovering  the  damages 
occasioned  by  it,  was  always  tried  by  jury;"  and  he  proceeds  to  refer  to 
Blackstone  and  to  the  old  Revised  Statutes.  As,  therefore,  "a  case  is 
presented  in  which  a  trial  by  jury  has  been  heretofore  used,"  the  com- 
missioner concluded  it  was  error  to  refuse  it. 

It  does  not  seem  to  me  necessary  to  pursue  further  the  consideration 
of  authorities.  The  respondent's  counsel  has  cited  others,  in  this  and 
the  lower  courts.  In  a  note  to  Arm,strong  v.  Gilchrist  (supra)  will  be 
found  reference  to  other  early  cases  in  this  state,  and  in  the  United 
States  Supreme  Court,  in  support  of  the  "settled  rule,  that  when  the 
Court  of  Chancery  has  gained  jurisdiction  of  a  cause  for  one  purpose, 
it  may  retain  it  generally  for  relief."  Underlying  the  system  upon  which 
courts  of  equity  have  exercised  their  power,  as  I  understand  it,  is  the 
principle  that  when  they  have  gained  jurisdiction  of  a  cause  by  reason 
of  the  infirmity  of  the  courts  of  law  to  entertain  it,  or  to  give  full  relief. 


132  LYNCH  V.  METEOPOLITAN  EL.  EY.  CO.         [part  i. 

they  will  retain  their  control  of  the  cause  generally,  and  settle  up  the 
whole  matter  between  the  parties. 

I  have  discussed  the  question  here  at  considerable  length,  in  order  that 
a  rule,  long  settled  by  careful  judicial  utterances,  and,  in  itself,  reason- 
able and  commendable  as  promoting  the  public  convenience  in  the  dis- 
position of  litigated  causes,  might  not,  at  this  day,  be  shaken  by  doubts. 
The  conclusion  which,  I  think,  we  must  reach  is  that,  in  this  complaint, 
the  cause  of  action  is  single  and  constitutes  a  claim  for  equitable  relief, 
and  there  is  not  mixed  up  with  it  a  cause  of  action  for  legal  relief. 

The  facts  alleged  as  a  basis  for  an  appeal  to  the  court  to  exert  its  equit- 
able power  may  well  have  constituted  a  claim  for  legal  relief,  and  might 
have  been  set  up  in  an  action  at  law ;  but  that  consideration  cannot  affect 
nor  change  the  equitable  nature  of  the  action  itself. 

It  was  not  error,  therefore,  to  deny  the  motion  for  a  trial  by  jury  as 
to  past  damages,  and  the  court  could  competently  proceed  with  the  trial 
of  the  cause  in  equity. 

The  only  other  point,  presented  to  us  upon  this  appeal,  is  that  it  was 
error  to  award  damages  for  portions  of  the  property  which  were  in  the 
possession  of  tenants.  As  to  this  question  the  case  is  controlled  by  the 
decision  of  the  Kernochan  case,  at  this  term. 

The  judgment  should  be  affirmed,  with  costs. 

All  concur,  except  Earl  and  Peckham,  JJ.,  dissenting. 

Judgment  affirmed. 


CHAP.  IV.]  ANONYMOUS  133 


CHAPTER  IV. 


FUNDAMENTAL  PRINCIPLES  AND  MAXIMS  CONTROLLING 
THE  EXERCISE  OF  EQUITY  JURISDICTION. 

Section  1.   General  Principles. 


ANONYMOUS. 

In  Chancery,  before  John  Morton,  M.  R.,  1479. 

[Cary  21.] 

A.  made  a  deed  of  feoffment  to  his  own  use  to  B.,  but  gave  no  livery 
of  seisin.  A.  dieth :  C,  his  heir,  bringeth  a  subpoena  against  B. ;  but  by 
Morton,  Master  of  the  Rolls,  C.  was  denied  help  here,  because  B.  had 
nothing  in  the  land;  and  if  he  abate,  there  is  remedy  at  the  common 
law  against  him. 


ANONYMOUS. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1752. 

[2  Vesey,  Senior  414.] 

Motion  for  injunction  to  stay  the  use  of  a  market  set  up  by  de- 
fendant Brown. 

Lord  Chancellor  refused  it,  saying  this  was  a  most  extraordinary 
attempt,  of  which  he  never  knew  an  instance  before.  The  plaintiff  has 
several  remedies :  there  may  be  a  Scire  facias  in  the  name  of  the  crown 
to  repeal  letters  patent  granting  a  market  to  the  prejudice  of  his  market 
as  being  too  near  thereto;  or  without  the  aid  of  the  crown  he  may  have 


134  WATSON  V.  SUTHERLAND  [part  i. 

a  common  action  upon  the  case  for  the  prejudice  to  his  market ;  *  where- 
as the  plaintiff  comes  originally  into  court  for  this  injunction.  What 
great  confusion  would  it  cause  to  bring  all  the  persons  who  use  this 
market  into  contempt  upon  the  injunction;  and  to  what  purpose?  If 
in  any  case  this  court  ought  to  interpose,  it  would  be  after  the  title 
was  established  at  law;  which  is  done  here,  though  there  are  so  many 
means  of  doing  it.  Injunctions  are  granted  to  quiet  in  possession,  as 
at  the  time  of  filing  the  bill  and  three  years  before:  but  that  is  drawn 
from  the  equity  on  the  statutes  of  forcible  entries.  Upon  the  equity 
founded  on  that  statute,  where  there  has  been  such  possession  for  three 
years,  this  court  will  prevent  beforehand :  but  there  is  no  such  statute 
in  this  case:  it  is  founded  on  the  common  law,  which  gives  the  above- 
mentioned  remedies.  This  court  will  not  interpose  before  the  title  at 
law  is  established:  though  I  will  not  say,  that  even  then  the  court  will 
not  interpose,  because  of  the  inconveniences. 


WATSON  V.  SUTHEELAND. 

In  the  Supreme  Court  of  the  United  States,  1866. 
[5  ^Yallace  74.] 

Appellants,  Watson  &  Co.,  levied  on  certain  goods — a  miscellaneous 
stock  in  retail  trade,  suitable  for  the  then  current  season,  and  intended 
to  be  paid  for  out  of  the  sales,  the  goods  being  in  the  possessian  of  the 
appellee,  Sutherland,  a  young  man  but  a  few  years  from  Ireland,  and 
only  recently  established  in  trade  but  doing  a  profitable  business.  From 
the  time  of  his  immigration  until  setting  up  in  business  for  himself, 
he  had,  so  the  answer  set  forth,  "been  salesman  in  a  retail  dry  goods 
store,  at  a  small  salary,  so  low  as  to  have  rendered  it  impossible  for  him 
to  have  saved  from  his  earnings  any  sum  of  money  sufficient  to  have 
made  any  real  purchase  of  the  stock."  The  appellants  alleged  that  these 
goods  had  been  transferred  to  appellee  by  a  bankrupt  firm.  Wroth  & 
Fullertoti,  fraudulently,  to  defeat  and  hinder  creditors.     Sutherland  filed 

*A  bill  to  be  quieted  in  possession,  by  one  who  possessed  a  water-course  for 
sixty  years,  was  allowed,  af,'ainst  a  mortgagee  who  foreclosed  the  equity  ot  re- 
demption, though  the  title  at  law  was  not  established.  Prec.  Ch.  530. 
Vide  1  Vern.  120,  129;  2  Atk.  302;  3  Atk.  726;  1  Vol.  476.  In  the  latter 
cases  an  injunction  was  refused,  till  the  title  was  established  at  law. — Re- 
porter's note. 


CHAP.  IV.]  WATSON  V.  SUTHERLAND  135 

the  present  bill  for  an  injunction  to  restrain  further  prosecution  by  the 
appellants  of  the  writs,  issued  on  their  judgments  against  the  bankrupts, 
alleging  exclusive  ownership  of  the  property,  and,  by  reason  of  the 
season,  the  nature  of  the  goods,  and  his  own  financial  condition,  ir- 
reparable injury  and  commercial  ruin  if  they  were  permitted  to  sell 
him  out.  The  lower  court  granted  a  temporary  injunction,  which,  on 
full  hearing,  was  made  permanent.  From  this  decision,  the  appellants 
brought  this  appeal.' 

Mr.  Justice  Davis  delivered  the  opinion  of  the  court.' 

There  are,  in  this  record,  two  questions  for  consideration.  Was 
Sutherland  entitled  to  invoke  the  interposition  of  a  court  of  equity;  and 
if  so  did  the  evidence  warrant  the  court  below  in  perpetuating  the  in- 
jimction  ? 

It  is  contended  that  the  injunction  should  have  been  refused,  because 
there  was  a  complete  remedy  at  law.  If  the  remedy  at  law  is  sufficient, 
equity  cannot  give  relief,  "but  it  is  not  enough  that  there  is  a  remedy 
at  law ;  it  must  be  plain  and  adequate,  or  in  other  words,  as  practical  and 
efficient  to  the  ends  of  justice,  and  its  prompt  administration,  as  the 
remedy  in  equity."  How  could  Sutherland  be  compensated  at  law,  for 
the  injuries  he  would  suffer,  should  the  grievances  of  which  he  com- 
plains be  consumated? 

If  the  appellants  made  the  levy,  and  prosecuted  it  in  good  faith,  with- 
out circumstances  of  aggravation,  in  the  honest  belief  that  Wroth  &  Ful- 
lerton  owned  the  stock  of  goods  (which  they  swear  to  in  their  answer), 
and  it  should  turn  out,  in  an  action  at  law  instituted  by  Sutherland  for 
the  trespass,  that  the  merchandise  belonged  exclusively  to  him,  it  is 
well  settled  that  the  measure  of  damages,  if  the  property  were  not  sold, 
could  not  extend  beyond  the  injury  done  to  it,  or,  if  sold,  to  the  value 
of  it,  when  taken,  with  interest  from  the  time  of  the  taking  down  to  the 
trial. 

And  this  is  an  equal  rule,  whether  the  suit  is  against  the  marshal  or 
the  attaching  creditors,  if  the  proceedings  are  fairly  conducted,  and  there 
has  been  no  abuse  of  authority.  Any  harsher  rule  would  interfere  to 
prevent  the  assertion  of  rights  honestly  entertained,  and  which  should 
be  judiciously  investigated  and  settled.  "Legal  compensation  refers 
solely  to  the  injury  done  to  the  property  taken,  and  not  to  any  collateral 
or  consequential  damages,  resulting  to  the  owners,  by  the  trespass."  Loss 
of  trade,  destruction  of  credit,  and  failure  of  business  prospects,  are 
collateral  or  consequential  damages,  which  it  is  claimed  would  result 
from  the  trespass,  but  for  which  compensation  cannot  be  awarded  in 
a  trial  at  law. 

Commercial  ruin  to  Sutherland  might,  therefore,  be  the  effect  of  clos- 
ing his  store  and  selling  his  goods,  and  yet  the  common  law  fail  to 
reach  the  mischief.    To  prevent  a  consequence  like  this,  a  court  of  equity 

^  A  statement  of  facts  has  been  substituted  for  that  in  the  report. 

'  Only  a  part  of  the  opinion  is  printed. 


136  MERCHANTS  NAT.  BANK  v.  PAINE  [part  i. 

steps  in,  arrests  the  proceedings  in  limine;  brings  the  parties  before  it; 
hears  their  allegations  and  proofs,  and  decrees,  either  that  the  proceed- 
ings shall  be  unrestrained,  or  else  perpetually  enjoined.  The  absence  of 
a  plain  and  adequate  remedy  at  law  affords  the  only  test  of  equity 
jurisdiction,  and  the  application  of  this  principle  to  a  particular  case, 
must  depend  altogether  upon  the  character  of  the  case,  as  disclosed  in 
the  pleadings.  In  the  case  we  are  considering,  it  is  very  clear  that  the 
remedy  in  equity  could  alone  furnish  relief,  and  that  the  ends  of  justice 
required  the  injunction  to  be  issued.' 


MERCHANTS  NATIONAL  BANK  v.  PAINE. 

In  the  Supreme  Court  of  Rhode  Island,  1882. 
[13  Rhode  Island  592.] 

Fehruary  11,  1882.  Durfee,  C.  J.  The  bill  alleges  that  Walter  Paine, 
3d,  one  of  the  defendants,  is  indebted  to  the  complainant  by  promissory 
note  in  the  sum  of  five  thousand  dollars  and  interest,  and  seeks  to  obtain 
pa;^Tnent  thereof  out  of  certain  equitable  interests,  which  came  to  him, 
under  the  will  of  his  father,  and  which  he  is  alleged  to  have  conveyed  to 
one  of  his  co-defendants  for  the  purpose  of  defeating  the  claims  of  the 
complainant.  The  bill  also  alleges  that  between  the  making  and  ma- 
turity of  the  note  said  Paine  absconded,  so  that  he  cannot  be  found 
either  in  this  State  or  in  Massachusetts,  the  State  of  his  domicile,  and 
that  he  has  left  no  property  in  this  State  which  the  complainant  can 
attach  and  thereby  secure  service  in  any  action  to  recover  judgment 
against  him,  and  that  the  complainant  has  exhausted  all  its  remedies 
at  law.    The  defendant  demurs  to  the  bill  on  the  ground  that  it  does  not 

^  "I  have  no  doubt  this  was  a  case  of  equity  jurisdiction.  I  do  not  say 
there  was  no  defence  at  law;  but  the  remedy  was  doubtful,"  Per  Spencer,  J., 
in  Ifathbonc  v.  Warren  (1813)  10  Johns.  587,  595.  And  see  Chancellor  Wal- 
worth's opinion  in  American  Ins.  Co.  v.  Fisk    (1828)    1   Paige  390. 

"We  have  the  authority  of  Lord  Hardwicke,  that  if  a  case  was  doubtful,  or 
the  remedy  at  law  difficult,  he  would  not  pronounce  against  the  jurisdic- 
tion of  this  Court.  The  same  principle  has  been  laid  down  by  Lord  Bathurst." 
— I'cr  Jiullrr,  ./.,  in  Weymoiith  v.  Hoyer  (1792)    1  Ves.  Jr.  416,  424. 

"The  defendant's  printed  argument  is  mainly  devoted  to  the  support  of  the 
proposition  that  the  case  is  not  within  the  jurisdiction  of  a  court  of  equity, 
and  that  if  it  is  technically  cognizable  there,  the  evidence  should  have  induced 
the  chancellor  to  dismiss  the  plaintifT's  bill,  and  thus  referred  the  parties  to 
another  tribunal  for  an  adjustment  of  their  disputes.  We  do  not  assent 
to  this  view  of  the  case.    There  is  certainly  no  reasonable  grounds  for  denying 


CHAP.  IV.]  MERCHANTS  NAT.  BANK  v.  PAINE  137 

appear  by  tlie  bill  that  the  claim  of  the  complainant  has  ever  been  re- 
duced to  judgment  at  law,  or  that  execution  has  ever  been  sued  out 
thereon. 

The  question  is  whether  a  suit  in  equity  can  be  maintained  to  enforce 
payment  of  a  purely  legal  claim  out  of  equitable  assets  before  the  claim 
has  gone  to  judgment  and  execution  at  law.  The  counsel  for  the  com- 
plainant admit  that  as  a  rule  it  cannot;  but  they  contend  that  the  only 
reason  why  it  cannot  is  because  a  court  of  equity  will  not  interpose  until 
the  creditor  has  exhausted  his  remedies  at  law,  and  because  the  best  evi- 
dence that  he  has  exhausted  them  is  a  judgment,  when  recoverable,  with 
execution  sued  out  thereon  and  returned  unsatisfied  for  want  of  property. 
And  they  also  contend  that,  when  this  evidence  cannot  be  procured  be- 
cause the  debtor  is  absent  or  has  absconded,  leaving  no  attachable  estate, 
the  court  will  proceed  without  it  upon  other  satisfactory  proof.  They  cite 
a  Kentucky  case  in  which  this  view  is  fully  sustained  by  judicial  decision. 
Scott  V.  McMillen,  1  Litt.  302.  They  also  cite  cases  which  contain 
favorable  dicta,  some  of  which  appear  to  have  been  expressed  after  care- 
ful consideration.  Russell  v.  Clark's  Executors,  7  Cranch,  69,  89 ;  Miller 
V.  Davidson,  8  111.  518,  522;  Greenway  v.  Thomas,  14  111.  271;  Anderson 
v.  Bradford,  5  J.  J.  Marsh.  69 ;  Meux  v.  Anthony,  11  Ark.  411,  418.  They 
cite  other  cases  which  hold  that  a  judgment  creditor  may  resort  to  equity 
before  execution  when,  the  debtor  being  insolvent,  the  execution  would 
manifestly  be  of  no  avail.  Turner  v.  Adams,  46  Mo.  95,  99;  McDermutt 
V.  Strong,  4  Johns.  Ch.  687,  689.  And  they  cite  a  New  York  case  in 
which  the  court  expressed  itself  strongly  in  support  of  the  jurisdiction, 
in  favor  of  a  creditor  who  was  prosecuting  a  judgment  recovered  in 
another  State.    McCartney  v.  Bostwicl;  32  N.  Y.  53. 

Besides  these  cases,  cited  by  counsel,  we  have  found  other  cases  which 
emphatically  support  the  same  view,  cases,  indeed,  from  which  it  appears 
that  the  jurisdiction  contended  for  has  been  unequivocally  affirmed  in 

that  in  view  of  the  nature  and  subject  matter  of  the  controversy  a  court  of 
equity  affords  the  most  convenient  remedy  for  a  just  disposition  of  the 
questions  involved  in  it,  while  a  remedy  afforded  by  a  court  of  law  is  obviously 
inconvenient,  and  the  adequacy  of  it  is  at  least  doubtful.  In  Appeal  of 
Brush  Electric  Co.,  114  Pa.  St.  574,  Mr.  Justice  Gordon  said:  'A  bill  may  be 
sustained  solely  on  the  ground  that  it  is  the  most  convenient  remedy.'  In 
support  of  this  statement  he  cited  Kirkpatrick  v.  McDonald,  11  Pa.  St.  393. 
See,  also,  on  this  point,  Drake  v.  Lacoe,  157  Pa.  St.  17,  and  Warner  v.  McMul- 
lin,  131,  Pa.  St.  370.  The  cases  of  Whiteman  v.  Fayette  Fuel  Gas  Co.,  139  Pa. 
St.  492,  and  Seicickley  Borough  School  Dist.  v.  Ohio  Valley  Gas  Co.,  154  Pa. 
St.  539,  are  also  in  point." — Per  McCollum,  J.,  in  Conemaugh  Gas  Co.  v.  Jack- 
son Farm  Gas  Co.  (1898)  186  Pa.  St.  443,  454;  S.  C.  65  Am.  St.  Rep.  865, 
866,  and  notes. 

"In  the  present  case,  we  think  it  sufficient,  that  the  remedy  in  equity  is 
more  adequate,  and  better  adapted  to  reach  the  justice  of  the  case,  and 
more  complete  by  being  at  once  more  comprehensive  and  effectual." — Per  Shaw, 
C.  J.,  in  Bemis  v.  Lpharti  (1832)    13  Pick.  169,  171. 


138  ATKINSON  v.  LEONARD  [part  i. 

Kentucky,  Virginia,  Indiana,  South  Carolina,  and  Missouri.  Scott  v. 
McMillen,  supra;  Peay  v.  Morrison's  Executors,  10  Gratt.  149;  Kipper 
V.  Glancey,  2  Blackf .  356 ;  O'Brien  v.  Coulter,  2  Blackf .  421 ;  Farrar  v. 
Haselden,  9  Eich.  Eq.  331;  Pendleton  v.  Perkins,  49  Mo.  565.  In  the 
last  cited  case  the  court,  after  reviewing  the  other  cases,  say,  p.  56S :  "It 
seems  thus  to  be  satisfactorily  settled  upon  authority  that  when  the 
debtor  has  absconded,  so  that  no  personal  judgment  can  be  obtained 
against  him,  and  there  is  no  statutory  proceeding  by  which  his  property 
can  be  reached,  a  creditor's  bill  will  lie,  in  the  first  instance,'  and  from 
the  necessity  of  the  case.  It  is  analogous  to  a  proceeding  to  subject  the 
equities  of  a  deceased  debtor,  or  to  satisfy  a  debt  from  a  specific  equitable 
fund,  as  to  enforce  a  lien,  in  neither  of  which  cases  is  a  personal  judg- 
ment required." 

If  it  were  true  that  the  only  reason  for  the  rule  is  the  exhaustion  of 
legal  remedies,  we  should  not  hesitate  at  all  to  assert  the  jurisdiction, 
for  very  clearly  where  no  legal  remedy  exists,  none  can  be  exhausted,  and 
the  reason  for  the  rvile  would  cease,  and  with  the  reason  the  rule  itself. 
"Cessante  ratione  legis,  cessat  ipsa  lex."  There  is,  however,  another  rea- 
son for  the  rule,  namely,  that  a  court  of  law  is  the  proper  tribunal  not 
only  to  afford  a  remedy  for  legal  claims,  but  also  to  adjudicate  them.  It 
seems  to  be  well  settled,  however,  that  a  creditor  may  proceed  in  equity 
without  first  getting  judgment  at  law,  if  his  debtor  be  dead.  And  if 
he  can  so  proceed,  if  his  debtor  be  dead,  there  can  be  no  insuperable 
reason  against  his  so  proceeding  while  his  debtor  is  alive.  Thompson 
V.  Brown  et  al.  4  Johns.  Ch.  619;  O'Brien  v.  Coulter,  2  Blackf.  421; 
Steere  v.  Hoagland,  39  111.  264;  The  Unl-nown  Heirs  of  Whitney  v. 
Kimhall,  4  Ind.  546;  Thorp  v.  Feltz,  Administrator,  6  B.  Mon.  6; 
Everingham  v.  Vanderhilt,  19  N.  Y.  Supreme  Court,  75;  Offutt  v. 
King,  1  McArthur,  312.  If  the  claim  be  one  that  is  peculiarly  fit  for 
legal,  or  peculiarly  unfit  for  equitable  cognizance,  issues  can  be  framed 
for  jury  trial.  The  jurisdiction  ought  to  be,  if  it  can  be.  upheld,  since 
without  it  a  debtor  may  have  valuable  property  and  yet  escape  the  pay- 
ment of  his  debts.  Our  conclusion  is,  so  far  as  this  point  is  concerned, 
that  the  suit  can  be  maintained. 


ATKINSON  V.  LEONARD 

In  Chancery,  before  Lord  Chancellor  Thurlow,  1791. 

[3  Brown's  Chancery  Cases  218.] 

'^](l\](>]\  to  discharge  a  writ  of  ne  exeat  regno,  obtained  against  de- 
fendant. The  plaintiff's  affidavit  on  which  he  obtained  the  writ  stated 
that  the  defendant  and  himself  were  inhabitants  of  Antigua;  that  the 


CHAP.  IV.]  ATKINSON  v.  LEONAED  139 

plaintiff  had  advanced  various  sums  of  money  to  the  defendant,  who 
was  his  brother-in-law;  that  the  defendant  coming  into  bad  circum- 
stances and  having  given  to  other  creditors  bonds  and  powers  of  attorney 
to  confess  judgments,  on  which  bonds  and  powers  judgments  had  been 
■entered  for  considerable  sums,  the  plaintiff  asked  for  and  received  sim- 
ilar instruments  in  his  own  favor;  that  during  his  absence  from  home 
the  defendant  gained  possession  of  these  instruments  which  he  removed; 
that  the  plaintiff  had  never  since  been  able  to  recover  them ;  that  both 
parties  were  now  in  England;  that  the  plaintiff  had  made  several  demands 
upon  the  defendant  for  money  due,  but  had  obtained  only  a  small  sum; 
that  the  defendant  intended  soon  to  leave  England  without  giving  se- 
curity for  the  plaintiff's  demands,  and  if  he  did  so,  the  plaintiff  would  be 
in  great  danger  of  losing  his  money. 

Upon  this  writ,  the  defendant  was  arrested  and  gave  bail;  and  put  in 
his  answer  to  the  plaintiff's  bill,  admitting  the  execution  of  the  bond  and 
warrant  of  attorney,  but  stating  claims  upon  the  plaintiff. 

The  defendant's  motion  to  discharge  the  writ  was  based  on  the  ground 
that  the  plaintiff  had  his  remedy  at  law,  since  the  action  was  on  a  lost 
tond,  oyer  of  which  was  now,  under  proper  circumstances,  excused.' 

Lord  Chancellor^ — The  real  question  is,  whether  there  is  a  sufficient 
equitable  demand  to  sustain  this  equitable  process. — I  should  be  sorry 
a  process  should  depend  on  so  precarious  circumstances  as  those  stated. 
The  case  in  Amhler  did  not  go  to  the  length  now  urged ;  the  Court  thought 
he  must  give  security  to  the  extent  of  the  demand.  Lord  Hardwicke  is 
there  made  to  take  a  difference  between  the  English  law,  as  administered 
at  Gibraltar,  and  the  Spanish  law  at  Minorca.  In  both  cases  justice 
would  be  equally  certain.  Lord  Northington  thought  the  process  ought 
not  to  be  extended  to  foreigners;  that  could  only  apply  where  the  justice 
of  the  case  would  be  equally  certain  to  be  done.  When  the  question  is 
only  between  a.  ne  exeat  regno,  and  taking  security,  I  easily  lean  to  the 
latter ;  because,  beyond  securing  the  demand,  I  thinlc  there  is  no  reason 
for  the  ne  exeat.  The  justice  of  the  Court  being  satisfied,  I  think  it 
would  be  better  to  abandon  the  process,  than  to  apply  it  where  the  pur- 

*  While  it  is  not  safe  to  vouch  for  Lord  Thurlow's  private  or  public  char- 
acter, his  law  is  sound.  Sir  R.  Pepper  Arden,  M.  R.  said  of  him  in  Carruthcrs 
V.  Carruthers  (1794)  4  Bra.  C.  C.  11:  "That  is  an  express  decision  by  Lord 
Thurlow,  *  *  *  and  though  it  has  not  the  sanction  of  the  House  of  Lords, 
it  is  the  opinion  of  a  great  judge." 

The  student  who  enjoys  good  English  and  who  wishes  a  vivid  portrait  of  the 
legal  advisers  of  the  British  Government  during  the  American  troubles,  Thur- 
low and  Wedderburn  (later  Lord  Lougborough) — "The  Moloch  and  the  Belial 
of  their  profession" — is  referred  to  Lecky's  Englai  d  in  the  XVTIIth  Century 
(New  Edn)  Vol.  IV.  pp.  465-466:  "On  a  single  question  the  excellence  of  the 
slave  trade — he  [Thurlow]  appears  to  have  had  a  genuine  conviction  arising 
almost  to  enthusiasm." 

"  The  statement  of  facts  has  been  abridged. 


140  ATKINSON  v.  LEONARD  [part  i. 

pose  can  be  answered  by  giving  security;  it  should  he  used  only  to  com- 
pel the  party  to  abide  by  the  justice  of  the  case. 

I  shall  not  contradict  the  case  in  the  King's  Bench  (Totty  v.  Nesbit)  ' 
being  law;  but  the  question  is,  whether  this  Court  is  ousted  of  its  juris- 
diction, so  that  a  demurrer  would  lie  to  a  bill,  for  a  lost  bond,  and  it 
must  be  dismissed:  I  thought  there  had  not  been  any  such  way  of  de- 
claring, but  there  must  be  a  profcrt;  but,  as  it  is,  there  must  be  proof  of 
the  bond's  having  had  existence  and  being  lost.  But  it  does  not  follow, 
because  the  court  of  law  will  give  relief,  that  this  Court  loses  the  con- 
current jurisdiction  which  it  has  always  had:  and  till  the  law  is  clear 
upon  the  subject,  the  Court  would  not  do  justice  in  refusing  to  enter- 
tain the  jurisdiction. 

Therefore  the  writ  must  be  discharged,  on  giving  such  security  as  the 
Master  shall  thinlv  proper,  to  pay  what  shall  be  found  due  upon  the 
account. 

'The  case  is  thus  reported  in  a  note  in  3  Term  Reports  153 — 
Totty  v.  Nesbit,  Tr,  24  Geo.  3  B.  R. 

Peckham  moved  for  a  rule  to  show  cause  why  the  defendant  should  not 
waive  his  demand  of  oyer  and  plead.  This  was  an  action  on  a  bond.  The 
plaintiff  had  before  filed  a  bill  in  the  exchequer  for  a  discovery,  and  the  de- 
fendant in  his  answer  admitted  that  he  had  executed  such  a  bond,  and  that  he 
had  destroyed  it. 

Buller,  J. — You  have  declared  with  a  profert;  and  after  that  the  Court 
cannot  say  that  the  defendant  shall  not  have  oyer.  You  should  have  declared 
that  the  bond  was  destroyed,  and  then  it  would  have  appeared  on  the  record 
that  the  defendant  was  not  entitled  to  oyer.  All  we  can  do  for  you  is  to  order 
that  the  production  of  a  copy  shall  be  oyer. 

But  the  plaintiff  having  no  copy  of  the  bond,  and  only  the  substance  of 
it  being  stated  in  the  bill  in  the  Exchequer,  Peckham  obtained  a  rule  to  show 
why  the  declaration  should  not  be  amended. 

The  same  note  reports  Ashurst  to  have  said,  in  the  case  of  Matison  v. 
Atkinson,  E.  27  G.  3  B.  R.  that  the  better  way  in  case  of  a  lost  or  destroyed 
instrument  was  for  the  plaintiflF  to  state  in  his  declaration  circumstances  to 
excuse  profert. 

The  doctrine  excusing  profert  seems  not  to  have  been  finally  settled  until 
Jfcad  v.  Brookman  (1789)  3  T.  R.  151,  per  Grose,  J.,  p.  161.  See  Toulmin  v. 
Price  (1800)    5  Ves.  235,  238. 

"Until  a  recent  period,  there  could  be  no  remedy  on  a  lost  bond  in  a  Court 
of  Common  Law,  because  there  could  be  no  profcrt  of  the  instrument,  without 
which  the  declaration  would  be  defective.  At  present  the  Courts  of  law  do 
entertain  the  jurisdiction,  and  dispense  with  the  profert,  if  an  allegation  of 
loss  by  time  and  accident  is  stated  in  the  declaration.  1  Story,  Eq.  Jur.  §181  : 
Read  v.  Brookman,  3  T.  R.  151;  Totty  v.  Neshit,  3  T.  R.  153;  1  Chitty.  PI. 
(9th  Am.  ed.)  .305,  360;  Cuffs  v.  U.  8.,  1  Gallis.  09;  Powers  v.  Ware,  3  Pick. 
451;  Smith  v.  Emery,  7  Halst.  53;  Rees  v.  Ovcrbaugh,  6  Cowen  748,  749; 
Kelly  V.  Piffrjs,  2  Root  120;  Hinsdale  v.  Mills,  5  Conn.  331." — Summer's  note 
to  Ex  parte  Greenway   (1802)   0  Ves.  812. 

In  Bromley  v.  Holland  (1802)  7  Ves.  3,  Lord  Eldon  discusses  and  criti- 
cises the  exercise  of  such  jurisdiction  by  courts  of  law. 


CHAP.  IV.]  SWEENY  V.  WILLIAMS  141 

Kemp  v.  Pryor  (1802),  7  Vesey,  Jr.,  237,  249. — Lord  Chancellor 
(Eldox). —  *  *  *  Farther,  I  cannot  admit,  that  if  the  subject  would 
have  been  a  subject  of  equitable  demand  previously  to  the  extension  of 
the  exercise  of  the  principle,  upon  which  a  Court  of  Law  is  authorized 
to  act  in  the  action  for  money  had  and  received,  that  Court  sustaining 
an  action,  they  would  not  have  sustained  forty  years  ago,  is  an  answer 
to  a  bill,  that  would  have  been  sustained  in  this  Court  at  that  time. 
Upon  what  principle  can  it  be  said,  the  ancient  jurisdiction  of  this 
Court  is  destroyed,  because  Courts  of  Law  now,  very  properly  perhaps, 
exercise  that  jurisdiction,  which  they  did  not  exercise  forty  years  ago? 
Demands  have  been  fi-equently  recovered  in  Equity,  which  now  could 
be  without  difficulty  recovered  at  Law;  as  in  the  cases  in  the  Exchequer 
upon  policies  of  insurance ;  and  others,  in  which  you  may  recover  money, 
that  the  policy  of  the  law  would  not  permit  to  be  paid :  as  payments  upon 
a  marriage  brocage  contract.  If  a  bill  was  filed  for  such  a  purpose,  and 
requiring  a  commission,  it  could  not  be  met  by  demurrer  or  otherwise 
with  the  objection,  that  the  Plaintiff  might  obtain  the  relief  at  Law ; 
and  the  Court  of  Law  could  by  imparlances  give  the  benefit  of  a  com- 
mission, which  this  Court  had  been  in  the  habit  of  giving.  I  cannot 
hold,  that  the  jurisdiction  is  gone,  merely  because  the  Courts  of  Law 
have  exercised  an  equitable  jurisdiction,  more  especially  in  the  action 
for  money  had  and  received.  I  agree,  that,  where  money  could  only  be 
recovered  at  Law,  the  prayer  for  a  commission  will  have  no  other  opera- 
tion in  this  Court  than  the  mere  consideration  of  the  question  of  juris- 
diction, as  founded  upon  the  simple  fact,  that  a  commissiou  is  prayed, 
would  give  it.' 


SWEENY  V.  WILLIAMS. 

In  the  Court  of  Errors  and  Appeals  of  New  Jersey,  1883. 

[36  Neiv  Jersey  Equity  627.] 

The  opinion  of  the  court  was  delivered  by 
Magie,  J. 

The  bill  filed  in  this  case  prayed  for  a  perpetual  injunction  restrain- 
ing the  respondent,  as  receiver  of  the  Mechanics  and  Laborers  Savings 

^In  a  later  case,  Eyre  v.  Everett  (1826),  2  Russ.  331,  332,  Lord  Eldon 
said:  "There  are  some  cases  in  which  the  Court  entertains  jurisdiction, 
though  there  would  be  a  good  defence  at  law;  but  that  is,  because  the  matter 
was  ot  such  a  kind  that  there  was  an  original  jurisdiction  belonging  to  this 
Court;  and  this  court  will  not  allow  itself  to  be  ousted  of  any  part  of  it3 
original  jurisdiction,  because  a  court  of  law  happens  to  have  fallen  in  love 
with  the  same  or  a  similar  jurisdiction,  and  has  attempted  (the  attempt  for  the 
most  part  is  not  very  successful)  to  administer  such  relief  as  originally  to 
be  had  here  and  here  only." 


142  SWEENY  v.  WILLIAMS  [part  i. 

Bank,  the  said  bank  and  one  John  Halliard,  from  bringing  or  maintain- 
ing any  action  against  the  appellant,  who  was  the  complainant,  upon  a 
certain  bond  and  mortgage.  The  bond  was  dated  November  1st,  187G; 
was  made  by  appellant  to  said  Halliard  and  was  conditioned  for  the 
payment  of  $10,000  on  November  1st,  1879,  with  interest,  and  was  se- 
cured by  the  mortgage,  which  was  likewise  made  by  appellant  to  Hal- 
liard, on  lands  which  Halliard  had  simultaneously  conveyed  to  him,  and 
recited  that  it  secured  a  part  of  the  purchase-money.  The  bond  and 
mortgage  had  been  assigned  by  Halliard  to  said  bank.  These  facts  were 
averred  in  the  bill,  and  appellant  therein  stated,  as  grounds  for  the  re- 
lief prayed,  that  the  transaction  between  Halliard  and  himself  waa 
merely  nominal  and  that  no  real  interest  was  acquired  by  him  in  the 
lands  conveyed  to  him,  and  no  consideration  existed  for  the  bond  and 
mortgage.  It  was  also  averred  that  an  action  had  been  lately  before 
brought  by  respondent,  as  receiver,  in  the  supreme  court,  against  appel- 
lant, upon  the  bond.  An  injunction  against  proceeding  in  said  action 
pending  the  suit  in  equity  was  also  prayed. 

Upon  the  advice  of  Vice-Chancellor  Van  Fleet,  the  bill  was  dismissed, 
and  this  appeal  was  taken. 

In  the  opinion  of  the  vice-chancellor  it  is  intimated  that  the  court  of 
chancery  might  have  properly  declined  jurisdiction  in  the  case,  on  the 
ground  that  the  relief  claimed  was  available  to  the  complainant  as  a 
defence  to  the  action  at  law,  and  that  nothing  appeared  to  afford  a 
reason  for  changing  the  forum  of  litigation.  This  intimation  has  been 
considered  by  counsel  arguing  before  us  as  implying  a  doubt  as  to  the 
jurisdiction  of  courts  of  equity  in  cases  where  the  relief  formerly  af- 
forded by  those  courts  alone,  may  now  by  statute  be  afforded  by  courts 
of  law.  I  do  not  understand  the  opinion  as  implying  such  a  doubt, 
but  if  it  is  susceptible  of  that  construction,  it  is  in  that  respect  er- 
roneous. 

When  courts  of  law  have  of  their  own  motion  extended  their  juris- 
diction over  cases  theretofore  solely  cognizable  in  equity,  the  jurisdiction 
of  the  latter  courts  has  been  in  no  respect  abridged,  although  when  the 
jurisdiction  at  law  has  become  well  established,  the  equity  jurisdiction 
has  been  in  some  cases  declined.  Eyre  v.  Everett,  2  Russ.  381;  Kemp 
V.  Byor,  7  Ves.  237;  Bromley  v.  Holland,  Id.  5;  Wells  v.  Pierce,  27  N.  H. 
503;  2  Spen.  Eq.  Jur.  §  693.  When,  by  statute,  a  right  to  administer 
relief  previously  administered  only  by  courts  of  equity  is  extended  to 
courts  of  law,  the  jurisdiction  of  the  courts  of  equity  is  undisturbed,  un- 
less prohibitory  or  restrictive  words  are  used  in  the  statute;  thenceforth 
the  jurisdictioTis  are  concurrent.  This  was  the  view  expressed  by  Chan- 
cellor Green,  in  Iricl-  v.  Bind;  2  C.  E.  Gr.  189,  199,  and  by  Chancellor 
Zabriskie,  in  Shot  veil  v.  Smith,  5  C.  E.  Gr.  79.  Although  questioned 
in  the  cases  of  McGough  v.  Ins.  Banl;  2  Ga.  151,  and  Riopelle  v.  Doell- 
ner,  26  Mich,.  102,  the  proposition  is  sustained  by  a  great  weight  of  au- 
thority.    Aity.-Gen.  v.  Aspinall,  2  M.  &  C.  613;  Cannon  v.  McNah,  48 


CHAP.  IV.]  SWEENY  r.  WILLIAMS  143 

Ala.  99;  MiUsaps  v.  Pfeiffer,  44  Miss.  805;  Case  v.  Fish'bacJc,  10  B.  Man 
40;  Hall  v.  //a^Z,  43  Ala.  488;  IFesZe?/  Church  v.  1/oore,  10  Fa.  6'^.  273 
Bright  v.  Newland,  4  Sneed  440;  A^i/Jf/  v.  Payan,  18  4r^^  583;  People  v 
Iloughtaling,  7  CaZ.  348;  Crai??,  v.  Barnes,  1  il/d  C/i.  151;  Payne  v.  5rJZ' 
.ar(/,  23  il/ws.  88;  Mitchell  v.  O^ei/,  /J.  230;  CZar/.-  v.  //enry,  9  il/o.  339; 
Dohyns  v.  McGovern,  15  il/o.  662. 

But  if  there  exists  a  concurrent  jurisdiction  in  courts  of  law  and 
courts  of  equity,  the  latter  will  decline  to  entertain  jurisdiction  after 
the  jurisdiction  of  the  courts  of  law  has  attached,  unless  the  relief 
that  the  applying  party  is  entitled  to  ask  cannot  be  fully  obtained  in  the 
court  of  law.  Story's  Eq.  Jiir.  §  599;  Smith  v.  Smith's  Admr.,  3  Stew. 
Eq.  564;  Salter  v.  Williamson,  1  Gr.  Ch.  480;  Van  Mater  v.  Sickler,  1 
Stock.  483 ;  Clarke  v.  Johnston,  2  Stock.  287. 

It  is  this  proposition  that  I  understand  the  learned  vice-chancellor  to 
have  maintained  in  the  opinion  below.  But  I  do  not  think  the  proposition 
was  applied  by  him  to  this  case,  nor  is  it,  in  my  judgment,  properly  ap- 
plicable thereto.  The  complainant  was  entitled,  if  at  all,  to  a  relief 
broader  than  could  be  afforded  him  in  the  action  at  law.  He  asked,  and 
if  his  contention  is  correct,  was  entitled  to  a  perpetual  injunction 
against  the  bond.  At  law,  his  relief  as  to  the  bond  could  be  obtained 
only  in  case  the  plaintiff  brought  his  action  to  trial.  If  he  discontinued 
or  submitted  to  a  nonsuit,  the  relief  could  not  be  obtained  there.  The 
complainant  was  also  entitled  to  relief  on  the  whole  transaction,  in- 
cluding the  mortgage  securing  the  bond,  a  relief  which  woiild  only  be 
incidentally  rendered  by  a  successful  defence  at  law,  and  to  which  Hal- 
liard was  necessarily  to  be  a  party.  Adequate  relief  was  therefore  not 
provided  in  the  existing  action  at  law.  I  think  it  indisputable  that  the 
court  below  had  jurisdiction  and  a  right  to  adjudicate  on  the  merits  of 
the  case,  as  was  done/ 


In  Year  Book,  4  Hen.  7,  4  b  (1489)  Archbishop  Morton,  Lord  €han- 
•cellor  said: 

It  is  against  reason  that  one  executor  shoidd  have  all  the  goods,  and 
give  a  release  by  himself.  I  know  very  well  that  every  law  should  be 
consistent  with  the  law  of  God;  and  that  law  forbids  that  an  executor 
should  indulge  any  disposition  he  may  have  to  waste  the  goods  of  the 
testator;  and  if  he  does,  and  does  not  make  amends,  if  he  is  able,  he 
shall  be  damned  in  hell.' 

^  Only  a  part  of  the  opinion  is  printed. 

2  In  Year  Book,  13  Edw.  IV.  fol.  9,  case  5,  the  chancellor  said  the  case  must 
be  determined  by  the  law  of  nature.  In  Calvin's  case,  7  Co.  12  b.  this  law 
is  thus  defined : 

"The  law  of  nature  is  that,  which  God  at  the  time  of  creation  of  the  nature 
of  man  infused  into  his  heart,  for  his  preservation  and  direction  and  this  is 
lex  aeterna  the  moral  law,  called  also  the  law  of  nature." 

In  commenting  upon  Archbishop  Morton's  case.  Lord   Campbell  observes: 

^'Equity  decisions  at  this  time  depended  upon  each  chancellor's  particular 


144  MYNN  V.  COBB  [part  i. 

In  the  Earl  of  Oxford's  case  (1G16)  1  Cli.  Rep.  1,  4,  Lord  Chancellor 
Ellesmere  said : 

By  the  Law  of  God,  He  that  builds  a  House  ought  to  dwell  in  it ;  and 
he  that  plants  a  Vineyard  ought  to  gather  the  Grapes  thereof;  and  it 
was  a  Curse  upon  the  Wicked,  that  they  should  huild  Houses  and  not 
dwell  in  them,  and  plant  Vineyards  and  not  gather  the  Grapes  thereof. 
Deut.  28.  V.  30. 


MYNN  V.  COBB. 

In  Chancery,  before  Lord  Chancellor  Ellesmere,  1603. 

iCary  35.] 

Nota  in  la  case  Mynn  v.  Cohh,  the  trust  was  not  so  fully  proved  as  the 
Lord  Chancellor  would  make  a  full  decree  thereupon,  so  as  it  should  be 
a  precedent  for  other  causes,  and  yet  so  far  proved,  as  it  satisfied  him  as 
a  private  man ;  and  therefore  in  this  case  he  thought  fit  to  write  his  let- 
ters to  the  defendant  to  conform  himself  to  reason;  and  affirmed,  that  if 
he  should  find  the  defendant  obstinate,  then  would  he  rule  this  cause 
specially  against  the  defendant,  sans  la  tires  consequence.^ 


notions  of  the  law  of  God  and  the  manner  in  which  heaven  would  visit  the 
defendant  for  the  acts  complained  of  in  the  bill ;  and  though  a  rule  is  some- 
times laid  down  as  to  where  'a  svibpcena  will  lie,'  that  is  to  say,  where  there 
might* be  relief  in  chancery,  it  was  not  until  long  after  that,  authorities  were 
cited  by  eliancellors,  or  that  there  was  any  stated  reference  by  them  to  the 
doctrine  of  the  court."   (1  Lives  of  the  Lord  Chancellors,  ch.  XXVI). 

^  "The  court  would  not  charge  the  lands  with  said  money,  the  example 
being  dangerous."  Mannayring  \.  Dudley  (1001-2)   Tothill  119. 

In  the  culminating  and  final  struggle  between  law  and  equity  represented 
respectively  by  Cole  and  Bacon,  Lord  Chancellor  Ellesmere  was  the  dominant 
and  deciding  influence  in  1G16  that  assured  the  permanent  triumph  of 
Chancery. 

His  exercise  of  the  right  to  restrain  an  unconscientious  judgment  at  law  was 
so  frequent  that  when  he  was  created  Viscount  Brackley  the  wits  of  West- 
minster Hall  not  inappropriately  dubbed  him  Viscount  Break-law. 

J"]llesmere  cuts  a  gicat  figure  in  equity  and  he  is  not  improperly  considered 
a  founder  if  not  "the  earliest  foinidcr  of  our  system  of  equity"  (Campbell's. 
Lives  of  the  Chancellors,  Ch.  XLV.). 


CHAP.  IV.]  FRY  V.  PORTER  145 

FREEMAN  v.  GOODHAM. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1676. 

[1   Cases  in  Chancery  295.] 

The  wife  when  sole,  bought  goods  for  money,  and  after  married, 
and  died.  The  goods  came  to  the  husband's  hands  after  her  death,  but 
the  debt  remained  unpaid. 

The  bill  by  the  plaintiflF,  the  creditor,  was  to  discover  the  goods,  and  a 
demurrer  thereto,  which  was  over-ruled  by  the  Lord  Chancellor,  who 
with  some  earnestness  said  he  would  change  the  law  in  that  point.^ 


Fry  v.  Porter  (1670),  1  Mod.  300,  307.— Kelynge,  Chief  Justice.  I 
do  not  see  how  an  averment  or  proof  can  be  received  to  make  out  a 
man's  intention  against  the  words  of  the  will.  In  Vernon's  Case,  though 
it  were  a  case  of  as  much  equity  as  could  be,  it  was  denied  to  be  re- 
ceived :  and  so  in  my  Lord  Cheney's  Case.  Here  was  a  case  of  Sir 
Thomas  Hathon,  somewhat  like  this  case,  wherein  no  relief  could  be  had. 

Vaugiian,  Chief  Justice.  I  wonder  to  hear  of  citing  of  precedents  in 
matter  of  equity.  For  if  there  be  equity  in  a  case,  that  equity  is  an 
"universal  truth,  and  there  can  be  no  precedent  in  it.  So  that  in  any 
precedent  that  can  be  produced  if  it  be  the  same  with  this  case,  the 
reason  and  equity  is  the  same  in  itself.  And  if  the  precedent  be  not  the 
same  case  with  this,  it  is  not  to  be  cited,  being  not  to  that  purpose. 

'In  1682,  at  the  Easter  Term,  Lord  Nottingham  said:  "The  common  law 
relieves  not  particular  cases  against  the  general  rule,  but  in  chancery  every 
particular  case  stands  on  its  own  particular  circumstances;  and  though  in 
general  the  law  will  not  relieve,  yet  equity  doth,  so  as  the  example  introduce 
not  a  general  mischief."    Hcle  v.  Hele  (1682)  2  Cas.  in  Ch.  87,  93. 

Lord  Talbot,  with  the  principal  case  before  him,  said:  "If  the  law  as  it 
now  stands  be  thought  inconvenient,  it  will  be  a  good  reason  for  the  Legis- 
lature to  alter  it,  but  till  that  is  done,  what  is  law  at  present,  must  take 
place."  Heard  v.  Stamford  (1735)   3  Feere  Williams  409,  411,   (infra). 

"Equity  is  a  Rougish  thing,  for  law  we  have  a  measure,  know  what  to  trust 
to,  Equity  is  according  to  the  Conscience  of  him  that  is  Chancellor,  and  as 
that  is  larger  or  narrower,  so  is  Equity.  'Tis  all  one  as  if  they  should  make 
the  Standard  for  the  measure  we  call  [a  Foot]  a  Chancellor's  foot,  what  an 
uncertain  measure  this  would  be?  One  Chancellor  has  a  long  Foot,  another  a 
short  Foot,  a  Third  an  indifferent  Foot;  'Tis  the  same  thing  in  the  Chan- 
cellor's Conscience." — Scldcn,  Table  Talk,  tit.  Equity. 

Spence  remarks, — "Selden  better  than  any  man  living  knew  what  equity 
really  was" — 1   Spence  Jurisdiction  of  the  Court  of  Chancery  414,  n.    (a). 


146  FRY  V.  PORTER  [part  ij 

Bridgman,  Lord  Keeper.^  Certainly  precedents  are  very  necessary 
and  useful  to  us,  for  in  them  we  may  find  the  reasons  of  the  equity  to 
guide  us ;  and  besides  the  authority  of  them  who  made  them  is  much 
to  be  regarded.  We  shall  suppose  they  did  it  upon  great  consideration, 
and  weighing  of  the  matter;  and  it  would  be  very  strange,  and  very  ill, 
if  we  should  disturb  and  set  aside  what  has  been  the  course  for  a  long 
series  of  time  and  ages. 

Thereupon  it  was  ordered  that  they  should  attend  with  precedents, 
and  then,  they  said,  they  would  give  their  opinions." 

'  Of  Lord  Keeper  Bridgnian,  greater  as  Chief  Justice  than  Chancellor, 
Lord  Nottingham  is  reported  to  have  said:  "It  is  due  to  the  memory  of  so 
great  a  man,  whenever  we  speak  of  him,  to  mention  him  with  reverence  and 
with  veneration  for  his  learning  and  integrity."  And  Lord  Ellenljorough,  not 
over-given  to  compliments,  pronounced  him  "a  most  eminent  judge,  distin- 
guished by  the  profundity  of  his  learning  and  the  extent  of  his  industry." 

^As  early  as  1595-6  the  case  of  Mears  v.  iit.  John  appears  to  have  been  de- 
cided upon  the  strength  of  a  precedent  cited  from  34  Henry  6,  by  Sir  Thomas 
Egerton,  Master  of  the  Rolls  (afterwards  Lord  Ellesmere).     See  4  Co.  Inst.  86. 

"A  court  of  equity  is  as  much  bound  by  positive  rules  and  general  maxims 
concerning  property  (though  the  reason  of  them  may  now  have  ceased)  as 
a  court  of  law  is." — Per  Lord  Mansfield,  in  Doe  v.  Laming  (1760)  2  Burr. 
1100,  1108. 

'"Some  judges,  when  they  seem  doubtful  what  to  determine  in  a  cause, 
will  be  inquisitive  after  precedents;  which  I  cannot  conceive  to  what  purpose 
it  should  be,  unless  that  being  desirous  to  pleasure  a  friend,  and  the  matter 
being  of  that  nature  that  they  are  ashamed  to  do  it,  they  would  faine  know, 
whether  any  before  them  have  done  so  ill  as  they  intend  to  do.  For  do  they 
think,  that  if  any  other  have  done  the  like,  it  is  sufficient  warrant  for  them 
therefore?  Surely  noe!  But  every  judge,  taking  upon  him  that  weighty  calling 
ouglit  to  direct  his  orders  secundum  allegata  et  probata,  and  according  to 
the  rules  of  a  good  conscience,  guided  by  the  word  of  God,  and  upon  certaine 
knowledge  of  the  lawes  of  the  realm,  agreeable  thereunto;  and  soe  to  divide 
between  lawe  and  equity,  that  for  the  particular  of  any  private  person  no 
violence  be  offered  to  the  lawe;  and  not  to  be  led  like  a  bear  by  the  nose 
after  other  men's  examples,  which,  if  it  were  admitted,  thei-e  is  no  injustice, 
however  gross  and  palpal)le  soever,  bvit  might  by  these  means  easily  be  ex- 
cused." Hargrave's  Law  Tracts  440 — ["From  the  contents  it  (the  mss.)  ap- 
pears  to  have  been  composed  in  the  latter  end  of  the  reign  of  James  the 
first,  soon  after  the  fall  of  Lord  Bacon  and  the  promotion  of  Bishop  Williams 
to  the  great  seal." — Introductory  note.]. 

"The  mention  of  this  most  liberal  description  of  equitable  jurisdiction, 
the  urbitrium  boni  viri  puts  me  in  mind  to  say  a  few  words  upon  another 
(piestion  very  properly  stated  by  you.  Whether  a  court  of  equity  ought  to 
bo  governed  by  any  general  rules? 

"It  is  impossible  to  answer  this  question  in  a  satisfactory  manner  witliout 
running    into   several   distinct  ions. 

"S()in(!  general  rules  there  ought  to  be,  for  otherwise  the  great  inconvenience 
of  Ju.H  vagum  et  incertum  will  follow;  and  yet  tlie  Praetor  nnist  not  be  so 
absohiteiy  and  invariably  bound  by  them,  as  the  judges  are  l>y  the  rules  of  the 


CHAP.  IV.]  MANNING  v.  MANNING  147 

Manning  v.  Manning  (1815),  1  Johns.  Ch.  527,  529. — The  Chancellor 
[Kent].  The  claim  of  [an  executor  to]  an  allowance  has  been  pressed  upon 
the  court  with  much  zeal,  as  if  the  denial  of  it  would  be  extremely  un- 
just, and  as  if  this  court  was  at  liberty  to  deal  with  established  rules  just 
as  it  pleased.  This  very  point  was  one  that  arose  in  the  case  of  Green  v. 
Winter;  and  it  was,  then,  considered  as  a  settled  rule  in  the  English 
chancery,  that  no  such  allowance  was  admissible,  unless  it  rested  upon 
contract,  or  was  given  by  the  will.  The  rule  there  must  be  the  rule 
here ;  for  I  take  this  occasion  to  observe,  that  I  consider  myself  bound 
by  those  principles,  which  were  known  and  established  as  law  in  the 
courts  of  equity  in  England,  at  the  time  of  the  institution  of  this  court ; 
and  I  shall  certainly  not  presume  to  strike  into  any  new  path,  with 
visionary  schemes  of  innovation  and  improvement;  via  antiqua  via  est 
tuta.  It  would,  no  doubt,  be,  at  times,  very  convenient,  and,  j)erhaps, 
a  cover  for  ignorance,  or  indolence,  or  prejudice,  to  disregard  all  English 
decisions  as  of  no  authority,  and  to  set  up  as  a  standard  my  own  notions 
of  right  and  wrong.  But  I  can  do  no  such  thing.  I  am  called  to  the 
severer  and  more  humble  duty  of  laborious  examination  and  study.  It 
was  Lord  Bacon  who  laid  it  down  as  the  duty  of  a  judge  to  draw  his 
learning  from  books,  and  not  from  his  own  head.  This  court  ought 
to  be  as  much  bound  as  a  court  of  law,  by  a  course  of  decisions  ap- 
plicable to  the  case,  and  establishing  a  rule.  As  early  as  the  time  of  Lord 
Keeper  Bridgman,  it  was  held  that  precedents  were  of  authority;  and 
that  it  would  be  "  very  strange  and  very  ill "  to  disturb  a  rule  in  chan- 
cery which  had  been  settled.  (1  Mod.  307.)  The  system  of  equity 
principles,  which  has  grown  up  and  become  matured  in  England,  and 
chiefly  since  Lord  Nottingham  was  appointed  to  the  custody  of  the  great 
seal,  is  a  scientific  system,  being  the  result  of  the  reason  and  labours 
of  learned  men  for  -a  succession  of  ages.'  It  contains  the  most  en- 
common  law;  for  if  they  were  so  bound,  the  consequence  would  follow  which 
you  very  judiciously  state,  that  he  must  sometimes  pronounce  decrees,  ichich 
would  he  materially  unjust  since  no  rule  can  he  equally  just  in  the  applica- 
tion to  a  whole  class  of  cases,  that  are  far  from  heing  the  same  in  every  cir- 
cumstance. 

"This  might  lay  a  foundation  for  an  equitable  relief  even  against  decrees 
in  equity,  and  create  a  kind  of  superfoetation  of  courts  of  equity." — Letter 
from  Lord  Hardicicke  to  Lord  Karnes,  1750.  Parkes'  History  of  Chancery 
501,  506. 

'  The  language  of  eulogy  has  been  exhausted  in  the  attempt  to  do  justice 
to  a  man  who  kept  his  hands  clean  as  befits  Equity  and  served  the  Stuarts 
and  the  cause  of  justice  with  equal  success.  Of  the  many  tributes  but  two 
are  cited.  Lord  Henley  considered  him  "very  great  in  the  knowledge  of  law 
and  Equity'"  (Burgess  v.  Wheate  (1759)  1  Eden  249),  and  in  Kemp  v.  Kemp 
(1801)  5  Vcs.  858,  Sir  R.  P.  Arden.  M.  R.  spoke  of  him  as  "that  great  Judge 
Lord  Nottingham,  styled  the  Father  of  Equity."  If  the  father  be  judged  by 
tlie  offspring,  Nottingham's  fame  is  coextensive  with  the  system  of  Equity 
which  he  expounded  scientifically,  if  he  did  not  really  create. 


148  MANNING  v.  MANNING  [part  i. 

larged  and  liberal  views  of  justice,  with  a  mixture  of  positive  and 
technical  rules,  founded  in  public  policy,  and  indispensable  in  every 
municipal  code.  It  is  the  duty  of  this  court  to  apply  the  principles  of 
this  system  to  individual  cases,  as  they  may  arise;  and,  by  this  moans, 
endeavour  to  transplant  and  incorporate  all  that  is  applicable  in  that 
system  into  the  body  of  our  own  judicial  annals,  by  a  series  of  decisions 
at  home. 

The  Master  of  the  Rolls,  Sir  Joseph  Jelcyll^  disclaimed  any  discretion- 
ary power  in  the  court,  sometimes  ignorantly  imputed  to  it,  to  follow 
the  private  affections,  or  any  arbitrary  notions  of  abstract  justice,  in- 
stead of  the  established  maxims  of  law  and  equity.  Though  proceedings 
in  equity  are  said  to  be  secundum  discretionem  honi  viri,  yet,  when  it 
is  asked,  Vir  bonus  est  quisf  The  answer  is  Qui  consuUa  Patrum,  qui 
Leges,  Juraque  servat;  (Sir  J.  Jehyll,  in  2  P.  Wms.  753.  See  also  3  P. 
Wms.  411;)  and  it  may  be  laid  down  as  a  certain  truth,  that  the  English 
system  of  equity  jurisprudence  forms  an  important  and  very  essential 
branch  of  that  "  common  law,"  which  was  recognised  in  the  constitution 
of  this  state.  If  it  were  not  so,  this  court  would  be  a  dangerous  tribunal, 
with  undefined  discretion,  and  without  either  science  or  authority  to 
guide  it.  The  English  decisions  are,  undoubtedly,  the  most  authentic 
evidence  of  the  English  common  law;  and  the  dignity  or  independence 
of  our  courts  is  no  more  affected  by  adopting  these  decisions,  than  in 
adopting  the  English  language;  or  than  the  independence  of  France  or 
Holland  is  wounded  by  following,  as  they  do,  the  civil  code  of  the 
ancient  Romans. 

Our  business,  then,  as  questions  arise,  is  to  discover  what  rule,  if 
any,  has  been  established  by  the  courts  in  this  state,  and  if  none,  then 
what  was  the  existing  rule  in  the  English  system  of  equity  at  the  com- 
mencement of  our  revolution.  And  while  engaged  in  this  inquiry,  we 
are  not  to  blind  our  eyes  against  human  knowledge,  but  it  is  incumbent 
on  us  to  examine  the  several  authorities,  whether  they  be  ancient  or 
modern,  whether  they  be  before  or  since  the  revolution,  whether  they  be 
foreign  or  domestic,  which  may  tend  in  any  degree  to  ascertain,  explain, 
or  illustrate,  the  point  under  consideration.  When  we  have  been  able 
to  deduce  from  them,  with  sufficient  precision,  the  true,  genuine  rule 
of  equity,  that  rule  becomes  the  law  of  the  case,  and  the  case  a  precedent 
for  the  future.^ 

'  In  Milboxtrnc  v.  Milhournc  (1786)  1  Cox  248,  Sir  Lloyd  Kenyon,  M.  R.  took 
occasion  to  refer  to  Lord  Talbot  and  Sir  Joseph  Jekyll,  whom  he  justly 
termed  "both  men  of  consummate  knowledge." 

^  "Whatever  may  be  called  a  legislative  authority  in  this  court,  I  utterly 
disclaim ;  but  so  far  as  the  court  have  already  gone  in  cases,  so  far  as  Lord 
'Nottingham,  Lord  Coicpcr,  Lord  King,  and  Lord  Talbot  have  gone  in  the 
several  cases  before  them,  I  think  myself  under  an  indispensable  obligation 
of  following. 

"I  have  spent  so  much  time  principally  with  this  view,  that  the  work  of  this 


CHAP.  IV.]  GEE  V.  PRITCIIARD  149 


GEE  V.  PRITCHARD. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1818. 

[2  Swanston  402.] 

The  bill  charged  that  Pritchard  was  proceeding  to  print  and  pub- 
lish, or  cause  to  be  printed  and  published,  the  letters  of  the  plaintiff, 
or  true  copies  or  copy  thereof,  and  extracts  therefrom,  and  that  he 
and  the  defendant  Anderson  had  caused  public  notice  thereof  to  be 
given,  by  advertisement  in  the  newspapers,  and  otherwise,  and  par- 
ticularly in  a  newspaper  called  The  Morning  Post,  on  Friday,  the 
9th  of  July,  in  the  words  following :  "  In  the  press,  and  speedily  will 
be  published  by  William  Anderson,  bookseller,  Piccadilly,  *  The 
Adopted   Son;  or,   Twenty  Years  at  Beddington,'  containing  Memoirs 

day  may  not  be  misunderstood,  as  if  the  court  had  departed  from  their  former 
precedents."  Per  Lord  Hardwicke,  in  Chesterfield  v.  Janssen  (1750)  1  Atk. 
339,  353. 

In  Bond  v.  Hopkins  (1802)  1  Sch.  &  Lef.  428,  429,  Lord  Redesdale 
observed,  "There  are  certain  principles  on  which  courts  of  equity  act,  which 
are  very  well  settled.  The  cases  which  occur  are  various,  but  they  are  decided 
on  fixed  principles.  Courts  of  equity  have,  in  this  respect,  no  more  discretion- 
ary power  than  courts  of  law.  They  decide  new  cases,  as  they  arise,  by  the 
principles  on  which  former  cases  have  been  decided,  and  may  thus  illustrate 
or  enlarge  the  operation  of  those  principles ;  but  the  principles  are  as  fixed 
and  certain  as  the  principles  on  which  the  courts  of  common  law  proceed." 

It  is  of  interest  to  note  that  ]Mr.  Justice  Story,  in  quoting  and  relying  upon 
this  decision  of  Lord  Redesdale  terms  him  ''one  of  the  ablest  judges  that 
ever  sat  in  equity."  (1  Equity  Jurisprudence  §  20).  From  this  opinion  one 
would  needs  be  bold  in^ieed  to  dissent. 

"The  correctness  of  this  principle  is  abundantly  established  by  the  authori- 
ties cited  in  the  opinion  delivered  by  this  court  in  the  action  at  law,  and 
its  application  to  the  case  most  forcibly  and  conclusively  illustrated;  that 
it  cannot  be  less  operative  in  a  court  of  equity  than  m  a  court  of  law  is 
obvious.  The  same  rules  of  decision  govern  both  courts ;  the  former  cannot 
any  more  than  the  latter  decide  in  opposition  to  legal  principles,  in  a  case 
to  which  these  principles  are  applicable;  to  do  so  would  be  an  assumption  of 
an  arbitrary  discretion,  as  pernicious  to  the  best  interest  of  the  community,  as 
it  is  contrary  to  the  fundamental  principles  of  our  government.  Even  those 
rules  of  law  which  in  their  nature  are  technical  and  positive,  cannot  be  dis- 
regarded by  a  court  of  equity."  Per  Boyle,  Ch.  J.,  in  Marshall  v.  Craig  (1812) 
1  Bibb   (Ky.)   394,  395. 

"I  now  come  to  a  modern  case  decided  in  the  year  1866,  and  it  is  the  first 
time  I  find  any  Judge  stating  that  there  was  any  law  to  prohibit  such  a  will 
being  carried  into  effect.  Having  examined,  not  only  the  authorities  I 
have  mentioned,   but  some  others  to  which  I  have  been  referred,  and  have 


150  GEE  V.  PEITCHAED  [part  r. 

of  a  Clergyman,  written  by  himself,  and  interspersed  with  interesting 
correspondence " ;  and  that  Anderson  was  printing  and  about  to  pub- 
lish the  same,  or  some  work  in  which  the  letters,  or  copies  thereof,  or 
extracts  therefrom,  were  introduced. 

The  bill  also  charged,  that  the  plaintiff  never  consented  or  agreed 
that  the  letters,  or  any  of  them,  or  any  extracts  or  extract  therefrom, 
should  be  published. 

The  bill  prayed  that  the  defendants  might  be  respectively  restrained 
by  injunctions  from  printing  or  publishing  the  original  letters,  or  any 
copies  or  copy  of  the  original  letters,  so  written  by  the  plaintiff,  or 
any  extracts  or  extract  therefrom,  and  might  be  decreed  to  deliver  up 
to  the  plaintiff,  or  to  destroy,  the  original  copy  of  the  letters  so  taken 
or  made  by  the  defendant  Pritchard,  and  all  printed  and  other  copies 
thereof,  or  of  any  extracts  'therefrom,  which  they  might  respectively 
have  in  their  possession  or  power. 

The  allegations  of  the  bill  being  verified  by  affidavit,  a  motion  was 
made  for  an  injimction,  which  the  Lord  Chancellor,  after  inquiring 
for  an  instance  of  an  injunction  issued  against  the  person  to  whom 
the  letters  were  addressed,  granted  on  the  authority  of  Thompson  v. 
Stanhope. — Amh.  737.^ 

Mr.  Hart,  Mr.  Wetherell,  and  Mr.  Sidehottom,  in  support  of  the 
motion  to  dissolve  the  injunction. 

foaiid  myself,  I  may  say,  I  cannot  find  a  trace  of  it  before  the  case  I  am 
about  to  mention,  and  therefore  if  there  is  such  a  law  it  must  have  been 
made  in  the  year  1866.  Now  it  could  only  have  been  made  in  the  year  1866 
by  statute,  because  in  the  year  1866,  Equity  Judges  did  not  profess  to  make 
new  law,  and  when  they  state  what  the  law  is,  they  do  not  mean  as  might 
have  been  said  two  or  three  centuries  before,  that  that  was  law  which  they 
thonglit  ought  to  be  law." — Per  Sir  George  Jcssel,  M.  R.,  in  Johnson  v.  Crook 
(1879)   L.  R.  12  Ch.  Div.  639,  649. 

"I  intentionally  say  modern  rules,  because  it  must  not  be  forgotten  that  the 
rules  of  Courts  of  Equity  are  not,  like  the  rules  of  the  Common  Law,  sup- 
posed to  have  been  established  from  time  immemorial.  It  is  perfectly  well 
known  that  they  have  been  established  from  time  to  time — altered,  improved, 
and  refined  from  time  to  tiine.  In  many  cases  we  know  the  names  of  the 
Chancellors  who  invented  them.  No  doubt  they  were  invented  for  the  purpose 
of  securing  the  better  administration  of  justice,  but  still  they  were  invented. 
Take  such  things  as  these:  the  sejjarate  use  of  a  married  woman,  the  restraint 
on  alienation,  the  modern  rule  against  perpetuities,  and  tne  rules  of  equitable 
waste.  We  can  name  the  Chancellors  who  first  invented  them,  and  state  the 
date  when  they  were  first  introduced  into  Equity  jurisprudence;  and,  there- 
forf.  in  cases  of  this  kind,  the  older  precedents  in  Equity  are  of  very  little 
vnliic.  Tlic  doctrines  are  progressive,  refined,  and  improved;  and  if  we  want 
1o  know  what  tlie  rules  of  I<]quily  are  we  nuist  look,  of  course,  rather  to  the 
n;ore  modern  than  the  more  ancient  eases." — -Per  Sir  George  Jcssel,  M.  R.,  In 
re  llallctVs  Estate  (1879)   1.3  Ch.  Div.  696,  710. 

'  Only  a  part  of  the  statement  of  the  case  and  the  pleadings  is  given. 


CHAP.  IV.]  GEE  V.  PRITCIIAED  151 

The  Lord  Ciiancellou.'  It  will  not  be  necessary  to  trouble  you  with 
that  view  of  the  case.  The  publication  of  a  libel  is  a  crime;  and  I 
have  no  jurisdiction  to  prevent  the  commission  of  crimes;  excepting, 
of  course,  such  cases  as  belong  to  the  protection  of  infants,  where  a 
dealing  with  an  infant  may  amount  to  a  crime — an  exception  arising 
from  that  peculiar  jurisdiction  of  this  court. 

Argument  in  support  of  the  motion  resumed. 

An  attempt  will  be  made  to  sustain  the  injunction,  on  the  ground 
that  the  publication  of  the  letters  will  be  painful  to  the  feelings  of  the 
plaintiff. 

The  Lord  Chancellor.  I  will  relieve  you  also  from  that  argument. 
The  question  will  be,  whether  the  bill  has  stated  facts  of  which  the 
court  can  take  notice,  as  a  case  of  civil  property,  which  it  is  bound  to 
protect.  The  injunction  cannot  be  maintained  on  any  principle  of  this 
sort,  that  if  a  letter  has  been  written  in  the  way  of  friendship,  eitlier 
the  continuance  or  the  discontinuance  of  that  friendship  affords  a  reason 
for  the  interference  of  the  court. 

Argument  in  support  of  the  motion  resumed. 

The  injunction  then  must  rest  on  one  of  two  grounds:  1.  That  the 
plaintiff  possesses,  in  the  letters,  a  property  either  general  or  literary; 
2.  That  the  publication  of  them  is  a  breach  of  trust. 

It  will  be  difficult  to  establish,  that  letters  may  be  the  subject  of 
literary  property.  The  cases  of  Pope  v.  Curl,  2  Atk.  342,  and  Thompson 
V.  Stanhope,  Amh.  737,  render  it  doubtful  to  what  extent  the  court 
recognizes  the  doctrine  of  property  in  letters.  Thus  Pliny's  letters  are 
said  to  have  been  written  or  revised  for  publication,  Plin.  Episi.  I. 
1,  ep.  1. 

The  Lord  Cil\ncellor.  My  predecessors  did  not  inquire  whether 
the  intention  of  the  writer  was  or  was  not  directed  to  publication. 
The  difficulty  which  I  have  felt  in  all  these  cases  is  this :  If  I  had 
written  a  letter  on  the  subject  of  an  individual,  for  whom  both  the 
person  to  whom  I  wrote  and  myself  had  a  common  regard,  and  the 
question  arose  for  the  first  time,  I  should  have  found  it  difficult  to 
satisfy  my  mind  that  there  is  a  property  in  the  letter;  but  it  is  my 
duty  to  submit  my  judgment  to  the  authority  of  those  who  have  gone 
before  me;  and  it  will  not  be  easy  to  remove  the  weight  of  the  deci- 
sions of  Lord  Llardwicke  and  Lord  Apsley.  The  doctrines  of  this 
court  ought  to  be  as  well  settled,  and  made  as  uniform  almost  as  those 
of  the  common  law%  laying  down  fixed  i^rinciples,  but  taking  care  that 
they  are  to  be  applied   according  to   the  circumstances   of  each   case. 

'  In  thinking  of  English  Chancery  the  name  of  Eldon  at  once  occivrs  and  his 
name  has,  to  use  a  phrase  of  Lowell's,  "grown  smooth  as  honey  on  the  lips 
of  man." 

The  judgments  of  Sir  Thomas  Plumer  are  far  from  impeccable  but  he  was 
happily  inspired  when  he  termed  his  chief  "the  greatest  judge  in  this  country." 
{Copis  V.  Middlcton  (1817)  2  Madd.  433).  The  student  is  referred  to  the 
life  of  Lord  Eldon,  in  3  volumes,  by  Horace  Twiss. 


152  GEE  V.  PKITCHARD  [part  i. 

I  cannot  agree  that  the  doctrines  of  this  court  are  to  be  changed  with 
every  succeeding  judge.  Nothing  would  intiict  on  me  greater  pain^ 
in  quitting  this  place,  than  the  recollection  that  I  had  done  anything 
to  justify  the  reproach  that  the  equity  of  this  court  varies  like  the 
Chancellor's  foot. 

I  understand  the  Vice-Chancellor  in  the  case  of  Lord  and  Lady 
Perceval  v.  Phipps,  2  Ves.  &  Beam.  19,  not  to  have  denied  Lady  Perce- 
val's property  in  the  letters,  but  to  have  inferred,  from  the  circum- 
stances, that  she  had  authorized,  and  for  that  reason  could  not 
complain  of,  the  publication. 

Argument  in  support  of  the  motion  resumed. 

Letters  between  public  functionaries  on  public  business,  or  between 
private  individuals  on  private  business,  where  the  nature  of  the  sub- 
ject discussed  made  it  evident  that  the  correspondence  could  not  be 
designed  for  publication,  may  constitute  an  exception. 

The  Lord  Chancellor.  Are  the  cases  which  establish  the  juris- 
diction founded  in  a  right  to  restore  the  property,  or  to  restrain  the 
publication  ?  I  think  that  the  decisions  represent  the  property  as  quali- 
fied in  some  respects;  that  by  sending  the  letter,  the  writer  had  given, 
for  the  purpose  of  reading,  and,  in  some  cases,  of  keeping  it,  a  prop- 
erty to  the  person  to  whom  the  letter  was  addressed,  yet,  that  the  gift 
was  so  restrained,  that  ultra  the  purposes  for  which  the  letter  was  sent, 
the  property  was  in  the  sender.  If  that  is  the  principle,  it  is  immaterial 
whether  the  publication  is  for  the  purpose  of  profit  or  not.  If  for 
profit,  the  party  is  then  selling;  if  not  for  profit,  he  is  giving,  that,  a 
portion  of  which  belongs  to  the  writer.  I  doubt  whether  the  court 
has  proceeded  so  far  as  to  decree  the  restoration  of  letters;  for  the 
principle  on  which  it  interferes  recognizes  a  joint  property  in  the 
writer  and  the  person  to  whom  they  are  addressed. 

Argument  in  support  of  the  motion  resumed. 

It  is  clear  that  the  defendant  was  entitled  to  retain  the  letters,  arid 
retaining,  to  read  and  show  them  to  his  friends  or  to  strangers.  These 
modes  of  publication  there  is  no  pretence  for  restraining:  upon  what 
principle  then  can  the  publication  by  printing  be  restrained?  An 
equity,  or  jus  proprietaiis,  in  the  plaintiff,  must  apply  equally  to  every 
mode  of  publication,  and,  confessedly,  not  authorizing  the  restraint  of 
some  modes,  cannot  by  any  rational  distinction  authorize  the  restraint 
of  any  mode.  The  argument  is  the  same,  whether  the  supposed  right 
of  the  plaintiff  is  founded  in  property  or  breach  of  confidence. 

The  Lord  Chanckllor.  Does  the  common  iniunction  ever  go  so  far? 
When  the  court  enjoins  a  defendant  from  publishing  the  book  of  an- 
other, has  it  ever  restrained  him  from  reading  it,  or  showing  it  to 
his  friends?  Such  an  injunction  will  not  prevent  the  defendant  from 
carrying  the  book  to  a  reading-room,  or  reciting  it  in  public  company;' 

*  Acting  a  dramatic  composition  on  the  stage,  is  not  a  publication,  within 


CHAP.  IV.]  GEE  V.  PRITCIIAED  153 

but  is  that  a  reason  for  not  restraining  publication?  The  usage  limits 
the  extent  of  the  jurisdiction. 

Argument  in  support  of  the  motion  resumed. 

Admitting  that  the  right  of  proi^erty  in  the  persons  receiving  the  let- 
ter is  qualified,  the  question  whether  that  right  of  property  includes  a 
right  of  publication  must  depend  on  the  circumstances  of  each  case. 
WTienever  the  writer  is  entitled  to  the  restoration  of  the  letter,  the 
party  from  whom  he  is  entitled  to  recover  it  can  have  no  right 
of  publication.  The  exclusive  property  in  the  manuscript  includes  every 
right  of  using  it,  and,  among  other  uses,  for  the  purpose  of 
publication.  But  where  the  correspondent  is  entitled  to  retain  tlie 
manuscript,  gi'eat  difficulty  occurs  in  restricting  his  right  of  pub- 
lication. 

In  this  case  the  defendant  was  unquestionably  entitled  to  retain  the 
letters;  and  he  is  now  entitled  to  publish  them  for  the  vindication  of 
his  character.  The  cases  of  Pope  v.  Curl,  and  Thompson  v.  Stanhope, 
proceed,  on  the  supposition,  that  the  person  in  possession  of  the  let- 
ters was  the  depositary  only,  and  not  the  proprietor;  but  whenever 
the  person  to  whom  they  are  sent  is  entitled  to  retain  them,  being  pro- 
prietor of  the  substance  on  which  they  are  written,  he  is  proprietor 
of   their  contents,   and   may   therefore  publish   them.     The   injunction 

in  V.  Eaton,  13  April,  1813,  2  Ves.  &  Beam.  23,  2T,  was  granted  on 

the  fact  of  purchase  of  the  letters  by  the  writer  from  the  defendant. 

On  the  ground  of  breach  of  trust,  of  which  there  is  no  evidence,  the 
injunction  could  not  be  maintained;  this  court  interferes  with  publi- 
cations only  as  the  subject  of  property — Southey  v.  Sherwood,  2 
Mer.  435.  The  injunction  in  the  Earl  of  Granard  v.  Dunkin,  1  Ball 
&  Beat.  207,  was  founded  on  a  right  of  property  in  the  receiver  of  the 
letters. 

The  Lord  Chancellor.  The  question  is,  what  is  the  conduct  of 
the  plaintiff,  which,  by  the  defendant's  affidavit,  is  represented  as  his 
justification  in  the  publication  of  the  letters?  If  the  court  possesses 
jurisdiction  by  reason  of  a  right  of  property,  and  if  the  principle  of 
the  decision  in  Lord  and  Lady  Perceval  v.  Phipps  would  require  me 
to  declare,  that,  notwithstanding  that  right  of  property,  the  plaintiflE's 
conduct  had  been  such,  that  she  was  not  entitled  to  the  interference 
of  the  court,  the  defendant  is  at  liberty  to  insist  on  either  or  both  of 
those  points;  provided  that  he  is  not  concluded  by  the  act  which 
Lord  Apsley  so  strongly  censured,  of  returning  the  originals  and  retain- 
ing copies.  That  act  is  particularly  stated  in  the  bill  as  an  abandon- 
ment of  property.  If  the  defendant  had  any  right  of  property,  it  was 
in  the  originals.  He  has  not  averred  that  the  letters  will  prove  the 
statement  in  his  affidavit,  though  that  is  to  be  inferred.     The  defend- 

stat.  8  Ann.  c.  19;  but  injunctions  have  been  granted  to  restrain  acting  as 
an  invasion  of  copyright.     Morris  v.  Kelly,  1  Jac.  &  Walk.  48L. 


154  GEE  V.  PRITCIIAKD  [part  i. 

ant  might  destroy  the  letters,'  and  so  destroy  the  plaintiff's  expecta- 
tion of  profit  from  them. 

Sir  Samuel  Romilly'  and  Mr.  Roupell  for  the  injunction. 

It  has  been  decided,  fortunately  for  the  welfare  of  society,  that  the 
writer  of  letters,  though  written  without  any  purpose  of  profit,  or  any 
idea  of  literary  jiroperty,  possesses  such  a  right  of  property  in  them, 
that  they  cannot  be  published  without  his  consent,  unless  the  pur- 
poses of  justice,  civil  or  criminal,  require  the  publication.^  It  is  not 
necessary  that  they  should  be  written  for  profit :  Dr.  Paley  having  pre- 
pared sermons  designed  for  gratuitous  distribution  among  his  parish- 
ioners, the  court  held  that  his  executors  possessed  a  property  in  them, 
and,  at  their  instance,  interfered  to  restrain  the  publication  by  a  book- 
seller. The  question  here  is,  whether  the  defendant  has  established 
that  he  is  about  to  publish  these  letters  for  purposes  essential  to  jus- 
tice ?  Without  that  proof  he  cannot  avail  himself  of  the  decision  in 
Lord  and  Lady  Perceval  v.  Phipps,  a  decision  which  admits  much  re- 
mark. No  such  case  is  established  by  his  affidavit,  and  for  the  pur- 
pose of  establishing  one,  a  course  more  effectual  than  any  affidavit 
would  have  been  the  production  of  the  intended  publication.  The 
publication,  not  of  a  simple  narrative  of  facts,  but  of  a  novel,  is  an 
extraordinary  expedient  for  the  vindication  of  character. 

The  Lord  Chancellor.  The  decision  of  the  Vice-Chancellor  pro- 
ceeded on  the  principle,  that  in  that  case  the  publication  was  necessary 
for  the  purposes  of  justice;  the  letter  of  the  defendant,  written  in 
April,  is  decisive,  that  the  publication  here  is  not  necessary  for  those 
purposes.  What  occasion  was  there  for  the  defendant  to  inform  the 
public,  that  he  intended  certain  papers  for  distribution  among  his  pri- 
vate friends? 

Argument  for  the  injunction  resumed. 

The    present   decision    will    constitute    a    most    important    precedent. 

'See  VVooddson  Lectures,  415. — Reporter's  note. 

-Inasmuch  as  Sir  Samuel  Romilly  (not  to  be  confused  with  his  eminently 
respectable  son,  Sir  John,  Master  of  the  Rolls)  is  generally  considered  as  the 
t\qie,  and  model  of  man  and  lawyer,  the  editor  cannot  omit  the  opportunity  of 
this  passing  mention,  to  refer  to  the  delightful  Life  and  Letters  of  Sir  Sam- 
uel edited  by  his  sons. 

Tlie  reference  is  all  the  more  appropriate  inasmuch  as  the  doctrine  of  the 
principal  case  is  often  credited  directly  to  Sir  Samuel  rather  than  to  Lord 
Kid  on 

"At  etiam  literas  quas  me  sibi  misisse  diceret,  recitavit,  homo  et  humani- 
tatis  expers,  et  vita?  communis  ignarus.  Quis  enim  unquam,  qui  paululilm 
modo  bonorum  consuetudinem  nosset,  literas  ad  sc  ab  amico  missas,  oflFensione 
aliqua  interposita,  in  medium  protulit,  pali\mque  recitavit?  Quid  est  aliud 
lollere  ft  vita  vita;  societatem,  quam  tollere  amieorum  colloquia  absentium? 
QuAm  multa  joca  solent  esse  in  cpistolis,  qua-  prolata  si  sint,  inepta  esse 
videantur?  Quam  multa  seria,  neque  tanicn  ullo  niodo  divulganda?"  Cic. 
Phil    ii. — Reporter's  note. 


CHAP.  TV.]  GEE  V.  PRITCIIARD  155 

If,  on  these  affidavits,  the  injunction  is  dissolved,  no  man  can  be  re- 
strained from  publishing  the  letters  which  he  has  received  from  another; 
all  that  will  be  necessary  to  authorize  the  publication  is  a  quarrel, 
an  assertion,  that  the  disclosure  is  required  for  the  vindication  of 
his  character.  When  the  defendant  returned  the  originals,  clandestinely 
retaining  copies,  he  abandoned  all  right  of  property  in  the  letters. 

The  Lord  Chancellor.  This  case  came  originally  before  me  on  a 
motion  made  ex  parte  by  the  plaintiff  Mrs.  Gee,  the  widow  of  the 
father  of  the  defendant,  who  is  represented  in  the  pleadings  as  his 
illegitimate  son.  The  affidavit  of  the  defendant  states  his  introduc- 
tion in  that  character;  that  he  was  known  and  received  as  a  son,  and 
treated  by  his  father  and  his  wife  with  great  kindness;  the  affidavit 
seems  to  intimate  some  dissatisfaction  with  the  representation  made  in 
the  bill,  of  the  circumstances  of  his  introduction ;  that  is,  perhaps, 
not  very  material,  not  a  matter  which  much  blends  itself  with  the  con- 
sideration that  I  must  give  to  the  subject;  but  his  introduction  is  cer- 
tainly represented  differently  in  the  bill  and  in  his  affidavit.  It  is 
stated,  that  the  plaintiff  entertained  a  great  kindness  for  him,  and  that 
she  expressed  that  kindness  by  letters  in  the  life  of  his  father.  I  col- 
lect from  the  last  affidavit,  that  Mr,  Gee  gave  to  the  defendant  a  legacy 
of  £4,000;  the  interest,  for  life,  of  £6,000,  devoting  the  principle  of 
that  sum  for  the  benefit  of  his  children ;  and  that  he  gave  to  the  plain- 
tiff the  interest  of  £1Y,000  for  her  life,  with  a  power  which,  under  the 
circumstances,  appears  to  me  not  unfit,  to  appoint  that  sum,  not  by 
deed  merely,  but  by  deed  or  will;  and  I  am  bound  to  take  it  to  be  his 
pleasure,  that  she  should  have  the  power,  during  the  whole  course  of 
her  life,  of  judging  to  whom,  at  her  death,  it  should  devolve;  an  abso- 
lute power,  of  the  exercise  of  which  no  person  has  any  right  to  com- 
plain. The  testator  also  declares,  that  if  his  widow  does  not  think 
proper  to  make  a  different  disposition,  that  sum  shall  go  to  the  de- 
fendant; but  as,  between  the  defendant  and  the  plaintiff,  the  rule  by 
which  I  am  governed,  is  the  will  of  his  father.  I  understand  that  it 
was  the  intention,  that  he  should  have  the  living  which  he  now  has, 
which  was  in  the  gift  of  Mr.  Gee's  brother,  but  not  vacant  at  his  death ; 
the  plaintiff  contends,  that  she  in  some  sense  obtained  it  for  him;  it  is 
not  going  far  to  conjecture,  that  if  she  had  opposed,  it  would  not  have 
been  given  to  him.  The  defendant  had  thus  received  £4,000  from  his 
father's  bounty,  and  the  interest  of  £6,000,  and  had  this  contingent 
right  in  £17,000,  with  the  prospect  of  the  rectory. 

The  plaintiff  represents,  that  during  many  years  she  had  addressed 
to  the  defendant  letters  of  a  private  and  confidential  nature;  that  she 
afterwards  had  reason  to  be  dissatisfied  with  his  conduct,  and  they 
had  ceased  to  be  on  terms  of  friendship;  and  as  evidence  of  his  in- 
tention to  publish  the  letters,  her  affidavit  states  the  advertisement. 
The  defendant  represents,  that  he  neither  did  nor  docs  intend  to 
publish  the  letters  for  profit ;  and  insists,  that  it  is  too  hard  a  criticism  to 


156  GEE  V.  PRITCHAKD  [part  i. 

infer  from  the  words,  "  to  publish,"  after  this  explanation,  that  he  must 
be  understood  to  mean  publication  for  sale;  and  yet  I  cannot  but  think, 
that  the  defendant  will,  on  reflection,  admit,  that  if  it  was  his  in- 
tention merely  to  give  these  letters  to  his  friends  and  relations,  it  was 
not  prudent  to  announce  his  intention  by  advertisement.  The  adver- 
tisement thus  held  out  to  the  public,  though  of  a  publication  intended 
only  for  private  circulation,  has  this  effect,  that  those  who  see  the 
publication  know  its  nature,  but  those  who  saw  only  the  advertisement, 
might  have  been  led  to  believe,  that  there  was  something  in  the  letters 
more  to  the  disadvantage  of  those  concerned,  than  they  really  contained; 
and  I  cannot  think  this  a  prudent  course. 

It  has  been  said  that  the  bill  contains  no  allegation  of  a  right  of 
property;  but  there  is  an  express  charge,  that  by  returning  the  origin- 
als, the  defendant  Pritchard  abandoned  any  right  of  property  which 
he  might  have  had  in  the  letters.  The  defendant  Anderson  has  not 
■filed  any  answer  or  affidavit;  but  I  am  bound,  by  the  affidavit  of  the 
defendant  Pritchard,  to  believe  that  he  did  not  intend  to  publish  the 
letters  for  sale. 

With  reference  to  charges  of  wounding  feelings,  looking  at  the  jur- 
isdiction of  the  court  to  be,  if  not  entirely,  mainly,  relative  to  the  ques- 
tion, whether  the  plaintiff  has  or  has  not,  property,  I  shall  trouble  my- 
self no  farther  than  by  simply  stating  the  circumstances  of  the  case  as 
they  appear  in  the  affidavits;  if  they  prove  a  breach  of  trust,  a  viola- 
tion of  a  pledge  which  has  been  given  to  the  plaintiff,  concerning  these 
letters,  that  is  not  the  grovmd  on  which  I  profess  to  proceed;  but  it 
is  necessary  to  refer  to  this  for  the  purpose  of  pointing  out  the  extreme 
difference  between  this  case  and  the  ease  of  Lord  and  Lady  Perceval 
V.  Phipps. 

The  argument  of  Mr.  Wetherell  has  confirmed  doubts  which  have 
often  passed  in  my  mind  relative  to  the  jurisdiction  of  this  court  over 
the  publication  of  letters;  but  I  profess  this  principle,  that  if  I  find 
doctrines  settled  for  forty  years  together,  I  will  not  unsettle  them.  I 
have  the  opinion  of  Lord  Hardwicke  and  of  Lord  Apsley,  pronounced 
in  cases  of  this  nature,  which  I  am  unable  to  distinguish  from  the 
present.  Those  opinions  have  been  acquiesced  in  without  application 
to  a  higher  court.  If  I  am  to  be  called  to  lend  my  assistance  to  un- 
settle them,  on  any  doubts  which  I  may  entertain,  I  will  lend  it  only 
when  the  parties  bring  them  into  question  before  the  House  of  Lords. 

The  statement  of  the  defendant's  affidavit  I  take  to  be  true,  as  I 
must  have  taken  his  answer.  I  cannot  trust  myself  with  any  such 
question,  as  whether  Mr.  Gee  should  have  left  to  him  a  larger  fortune; 
what  were  the  expectations  that  he  might  form  in  consequence  of 
what  passed  between  him  and  his  father,  is  a  point  on  which  I  cannot 
enter.  The  provision  made  by  the  will  is  th^t  which  this  court  is 
bound  to  say,  as  between  the  father  and  the  son,  must  be  considered 
jiroper.     The  defendant  may  most  honestly  entertain   an  opinion  that 


CHAP.  IV.]  GEE  V.  PRITCHARD  157 

more  was  intended ;  but  when  I  see  such  a  power  given  to  the  widow, 
I  must  understand  that  his  father  meant  that,  to  the  time  of  her  death, 
her  will  should  be  free. 

Supposing  the  affidavit  of  the  defendant  to  have  stated,  with  a  great 
deal  more  precision,  the  representations  which  seem  to  him  to  call  in 
question  his  veracity,  and  in  consequence  of  which  he  is  under  a  be- 
lief that  it  becomes  him  to  set  himself  right  in  the  opinion  of  the 
"world,  the  plaintiff's  representations,  that  the  defendant's  marriage  was 
disapproved  by  herself  and  her  husband,  and  so  as  to  all  the  rest;  it 
would  have  been  a  more  welcome  duty  to  have  considered,  first. 
Whether  the  court  has  jurisdiction  on  this  subject;  secondly.  Whether 
the  motives  which  the  defendant  states  to  have  led  to  this  publication 
were  so  created  by  the  plaintiff's  conduct,  that  I  ought  to  follow  the 
■example  of  the  Vice-Chancellor  in  Lord  and  Lady  Perceval  v.  Phipps, 
and  to  say,  that,  let  it  be  ever  so  clear  that  the  plaintiff  has  either  a 
sole  or  a  joint  property  in  the  letters,  the  court  will  not  interfere  be- 
tween the  parties;  but  the  affidavits  state  a  transaction  with  regard  to 
the  letters,  with  no  part  of  which  am  I  acquained,  except  what  ap- 
I)ears  in  the  affidavits.  Repeating  that  the  testator  had  left  £17,000  to 
the  discretion  of  the  plaintiff,  that  she  had  given  to  the  defendant 
£4,000  since  the  testator's  death,  and  had,  at  least  in  her  own  judg- 
ment, been  instrumental  in  obtaining  the  living  which  he  now  holds, 
lier  affidavit,  asserting  her  husband's  intention  to  intrust  to  her  a  con- 
trol on  the  defendant's  conduct  (and  I  take  the  facts  to  be,  that  she 
had  given  to  him  various  sums,  and  that  he  continued  to  press  for 
money),  proceeds  to  state  that  the  defendant  returned  her  letters, 
having  first  taken  copies,  and  now  threatens  to  publish  them.  Whether 
that  is  an  act  which,  if  it  can  be  done,  ought  to  be  done,  the  defend- 
ant is  to  decide.  I  am  to  decide  whether  it  can  be  done.  If  it  is  sup- 
posed, that  by  reading  the  letters  any  impression  may  be  made  on  my 
mind  different  from  that  which  I  am  about  to  state,  I  will  forbear 
to  state  it,  till  I  have  read  them;  otherwise  I  am  now  ready  to  proceed. 

The  counsel  for  the  defendant  intimated,  that  they  had  read  one  of 
the  letters  and  thought  it  unimportant. 

The  Lord  Chancellor.  I  am  of  opinion,  that  the  plaintiff  has  a 
•sufficient  property  in  the  original  letters  to  authorize  an  injunction, 
unless  she  has  by  some  act  deprived  herself  of  it.  Laying  out  of  the 
case  much  of  what  Mr.  Wetherell  has  urged  with  so  much  ingenuity, 
I  say  only  that  though  a  letter  is  a  subject  of  property,  capable  of  be- 
ing much  more  largely  dealt  with,  in  communication,  than  books,  as, 
by  reading  to  others,  repeating  passages,  etc.,  yet  the  court  has  never 
iDeen  alarmed  out  of  the  practice  of  granting  injunctions  relative  to 
letters  to  the  extent  to  which  it  grants  them  in  the  case  of  books,  be- 
-eause  persons  may  assemble  others,  and  read  and  recite  to  them:  it 
is  not  deterred  from  giving  that  relief  because  it  cannot  give  other 
relief  more  effectual. 


I68":  GEE  L'.  PRITCHARD  [part  i. 

In  stating  what  Lord  Hardwicke  says  on  the  subject,  though  I  can- 
not at  the  moment  refer  to  eases,  I  state  that  which,  in  cases,  has  been 
handed  down  as  the  law  of  the  court.  In  Pope  v.  Curl,  Lord  Hardwicke 
went  out  of  his  way  to  state  what  he  thought  the  doctrine  on  the  sub- 
ject of  letters.  Though  the  letters  of  eminent  men,  no  one  can  suppose 
that  they  were  all  meant  for  publication;  there  are  many  passages  in 
Swift's  letters  which  he  would  be  unwilling  to  have  published.  Lord 
Hardwicke  says,  "  Another  objection  has  been  made  by  the  defendant's 
counsel,  that  where  a  man  writes  a  letter  it  is  in  the  nature  of  a  gift 
to  the  receiver;  but  I  am  of  opinion  that  it  is  only  a  special  property 
in  the  receiver:  possibly  the  property  of  the  paper  may  belong  to  him, 
but  this  does  not  give  a  license  to  any  person  whatsoever  to  publish 
them  to  the  world."  If  he  had  stopped  there,  doubt  might  have  been 
entertained  whether  the  receiver  was  not  at  liberty  to  publish  them  to 
the  world,  but  he  proceeds,  "  for,  at  most,  the  receiver  has  only  a  joint 
property  with  the  writer."     2  Atk.  342. 

No  one  can  read  the  case  of  Thompson  v.  Stanhope  without  seeing 
that  this  was  understood  at  that  time  to  be  the  doctrine  of  the  court. 
Publication  was  there  advertised  in  November,  and  the  application  to 
the  court  not  made  till  March,  and  on  that  circumstance  Lord  Apsley 
proceeded  in  recommending  the  arrangement  which  he  afterwards 
mentions :  "  The  executors  cannot  be  said  to  have  given  their  con- 
sent, though  his  Lordship  thought  they  would  have  done  better  if 
they  had  applied  earlier,  before  the  expense  of  printing  was  incurred." 
Amh.  739,  740.  That  is  a  strong  part  of  the  case.  Those  were  letters  of 
two  classes,  written  by  a  father  to  his  son;  one  class  relating  to  the 
characters  of  individuals.  The  communication  being  made  by  letter  is 
prima  facie  evidence,  that  that  is  all  the  communication  which,  on  the 
subject  of  those  characters,  the  writer  intends  to  make.  So  of  what 
relates  to  education :  though  they  concern  public  characters,  and  a 
public  subject — education,  no  one  can  maintain,  that  those  discussions, 
found  in  private  letters  gave  to  the  person  who  received  the  letters  a 
right  to  carry  into  public  the  opinions  of  the  writer  on  those  public 
characters,  and  the  system  of  education.  Lord  Apsley  therefore  granted 
the  injunction,  observing,  that  the  defendant  "  did  very  ill  in  keeping 
copies  of  the  characters,  when  Lord  Chesterfield  meant  that  they  should 
be  destroyed  and  forgotten."  Lord  Apsley  also  cites  the  case  of  Mr. 
Forrester,^  which  certainly  does  not  apply  to  letters.  I  believe  the 
parties  came  to  a  compromise. 

The    doctrine    is   thus    laid    down,    following   the   principle    of    Lord 

'"In  llio  f-aso  of  Mr.  Forrester  v.  Waller,  13  June  1741,  an  injunction  for 
printing  tlie  plaintiff's  notes,  gotten  surreptitiously  without  his  consent,  was 
granted."  4  T'.urr.  2;?31.  In  Donaldson  r.  Beckett,  2  Bro.  P.  C.  Ed.  Toml.  129, 
is  enumerated  anumg  other  "injunctions  for  printing  unpuhlished  MSS.  with- 
out license  from  the  author,  13  June  1741;  Forrester  v.  Waller,  for  Forrester's 
Reports."    Id.  138. 


CHAP.  IV.]  GEE  V.  PRITCIIARD  I'S^; 

Ilardwicke:  I  do  not  say  that  I  am  to  interfere  because  the  letters  are 
written  in  confidence,  or  because  the  publication  of  them  may  wound 
the  feelings  of  the  plaintiff;  but  if  mischievous  effects  of  that  kind 
can  be  apprehended  in  cases  in  which  this  court  has  been  accustomed, 
on  the  ground  of  property,  to  forbid  i)ublication,  it  would  not  become 
me  to  abandon  the  jurisdiction  which  my  predecessors  have  exercised, 
and  refuse  to  forbid  it. 

Such  is  my  opinion;  and  it  is  not  shaken  by  the  case  of  Lord  and 
Lady  Perceval  v.  Phipps.  I  will  not  say  that  there  may  not  be  a  case 
of  exception,  but  if  there  is,  the  exception  must  be  established  on  ex- 
amination of  the  letters;  and  I  think  that  it  will  be  extremely  difficult 
to  say  where  that  distinction  is  to  be  fomid  between  private  letters  of 
one  nature,  and  private  letters  of  another  nature.  For  the  purposes 
of  public  justice  publicly  administered,  according  to  the  established 
institutions  of  the  country,  the  letters  must  always  be  produced ;  I 
do  not  say  that  of  justice  administered  by  private  hands;  nor  do  I  say 
that  there  may  not  be  a  case,  such  as  the  Vice-Chancellor  thought  the 
case  before  him,  where  the  acts  of  the  parties  supply  reasons  for  not 
interfering:  but  that  differs  most  materially  from  this  case.  In  April 
last,  the  defendant  having  so  much  of  property  in  these  letters  as  be- 
longs to  the  receiver,  and  of  interest  in  them  as  possessor,  thinks 
proper  to  return  them  to  the  person  who  has  in  them,  as  Lord  Hard- 
wicke  says,  a  joint  property,  keeping  copies  of  them  without  appris- 
ing her,  and  assigning  such  a  reason  as  he  assigns  for  the  return.  Now 
I  say,  that,  if  in  the  case  before  the  Vice-Chancellor,  Lady  Perceval  had 
given  to  Phipps  a  right  to  publish  her  letters,  this  case  is  the  converse 
of  that ;  and  that  the  defendant,  if  he  previously  had  it,  has  renounced 
the  right  of  publication. 

On  these  grounds  the  injunction  must  be  continued. 

Motion  refused.* 

'  "There  are  only  two  grounds  upon  which  it  has  been  insisted  that  private 
letters  are  an  exception  from  the  general  doctrine.  The  first  is,  that  the 
transmission  of  the  letters  vests  the  whole  property  in  tae  receiver,  and  op- 
erates as  an  absolute  gift.  The  second,  that  if  the  writer  retains  any  property 
at  all,  it  is  only  in  such  letters  as  are  stamped  with  the  character  and  possess 
the  attributes  of  literary  compositions. 

"The  first  ground  of  exception,  as  plainly  overruled  by  the  decisions,  was 
very  properly  abandoned  by  the  counsel  of  the  defendants.  He  rested  his  whole 
argimient  upon  the  second;  and,  holding  himself  excused  from  any  closer  ex- 
amination of  the  English  cases,  relied  upon  the  decision  of  Chancellor  Wal- 
worth, in  Hoyt  v.  McKenzie,  as  a  binding  and  conclusive  authority.  (13  Barb. 
Ch.  Cases.  324.) 

"The  proposition  Avhich  we  hold  to  have  been  settled  as  law,  for  more  than 
a  century  before  the  judgment  in  Hoyt  v.  McKenzie  was  pronounced,  is  that 
which  was  laid  down  by  Sir  Samuel  Romilly,  and  affirmed  b]-  the  decision 
ot  Lord  Eldon,  in  Gee  v.  Pritchard  (2  Swanston,  418).  It  is  that  "the 
writer    of    letters,    though    written    without    any    purpose   of    publication    or 


160  HILLS  V.  UNIVEESITY  OF  OXFOED  [part  i. 


COMPANY  OF  STATIONEKS  CASE. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1681. 

[2  Cases  in  Chancery  76.]' 

The  king  granted  to  the  company  of  stationers  the  printing  and  vend- 
ing of  statute  books.  The  defendant  caused  the  statutes  to  be  printed  in 
Amsterdam,  and  in  great  bails  and  quantities  to  be  imported  to  sell 
where  they  remained.  The  plaintiffs  exhibited  a  bill  complaining  of  it. 
The  defendants  appeared,  but  the  time  of  answer  was  not  expired  till 
the  1st  of  October:  I  moved  that  the  books  might  remain  at  the  custom- 
house till  answer.     On   debate. 

The  Lord  Chancellor  ordered  an  injunction  to  stay  the  books  there, 
not  only  till  answer,  but  in  perpetuum ;  for  the  printing  of  the  laws  was 
matter  of  state,  and  concerned  the  state.^  But  for  other  books,  viz.  the 
Whole  Duty  of  Man,  and  other  like  books  being  imported  and  staid,  he 
left  them  to  the  ordinary  course. 


HILLS  V.  UNIVERSITY  OF  OXFORD. 

In  Chancery,  before  Lord  Keeper  Guilford,  1684. 

[1    Vernon   275.] 

In  the  eighth  year  of  King  Charles  the  First,  there  was  a  patent 
granted  to  the  University  of  Oxford  to  print  bibles  and  other  books  not 
prohibited.     30  Martij.  8  Car.  that  patent  is  confirmed,  and  limits  that 

profit,  or  any  idea  of  literary  property,  possesses  such  a  right  of  property  in 
them  that  they  can  never  be  published  without  his  consent,  unless  the  purposes 
of  justice,  civil  or  criminal,  require  the  publication."  If  tliis  proposition  be 
true,  it  follows  that  the  distinction  which  has  been  supposed  to  exist  between 
letters  possessing  a  value  as  literary  compositions,  and  ordinary  letters  of 
friendship  or  business,  is  wholly  groundless.  The  right  of  property  is  the 
same  in  all,  and  in  all  is  entitled  to  the  same  protection."  Per  Duer,  J., 
in  Woolsry  v.  Judd   (18.55)   4  Duer,  .379. 

Lack  of  space  prevents  the  printing  of  this  admirable  opinion.  The  student 
cannot  afford  to  neglect  it. 

'  For  subsequent  proceedings  against  third  parties  in  the  same  case,  see  2 
Cas.  Ch.  <)3. 

'  In  Anonimous  (1682)  I  Vern.  120  it  was  urged  that  Chancery  was  a  Court 
of  State  and    inasmuch  as  the  sale  of  English    Bibles    printed    beyond    the 


CHAP.  IV.]  GYLES  V.  WILCOX  161 

there  shall  be  but  two  presses  and  three  printers.  The  plaintiffs  claim 
as  the  King's  printers,  undtT  several  patents  continued  down  by  mesne 
assignments,  and  bring  their  bill  to  restrain  the  defendants  from  print- 
ing bibles,  &c.  And  it  was  observed,  that  the  bible  was  translated  at  the 
King's  own  charge;  so  that  the  copy  was  his;  and  that  printing  was 
brought  in  by  Henry  6th  at  his  own  charge. 

The  Lord  Keeper  was  of  opinion,  that  it  was  never  meant  by  the 
patent  to  the  University,  that  they  should  print  more  than  for  their  own 
use,  or  at  least  but  some  small  number  more,  to  compensate  their  charge: 
but  as  they  now  manage  it,  they  would  engross  the  whole  profit  of  print- 
ing to  themselves,  and  prevent  the  King's  farmers  of  the  benefit  of  their 
patent :  however  he  said,  the  validity  of  the  several  patents  was  a  matter 
proper  to  be  determined  at  law,  and  the  plaintiffs  were  now  proper  only 
for  a  discovery,  and  therefore  ordered  that  the  plaintiffs  should  bring 
an  action  at  law  in  the  King's  Bench,  against  the  University,  or  the 
defendants  Parker  and  Guy  who  claimed  under  the  patent  to  the  Uni- 
versity, and  that  it  should  be  tried  at  the  bar:  and  the  defendants  were 
to  admit  they  had  printed  a  competent  number  of  bibles  at  the  trial. 
And  though  the  plaintiffs  pressed  much  for  an  injunction  to  stay  the 
University  printers  from  going  on  with  the  printing  of  bibles  until  the 
trial  had  settled  the  right,  yet  the  Lord  Keeper  refused  to  grant  it,  in 
regard  that  in  case  the  right  should  be  found  with  them,  they  would  by 
such  prohibition  receive  a  prejudice,  that  he  could  not  compensate  nor 
make  good  to  them. 


GYLES  V.  WILCOX. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1740. 

[2  Atkyns  141.] 

A  bill  was  brought  by  Fletcher  Gyles,  bookseller,  for  an  injunction  to 
stay  the  printing  of  a  book  in  octavo,  intitled  Modern  Crown  Law;  it 
being  suggested  by  the  bill  to  be  colourable  only,  and  in  fact  borrowed 
verbatim  from  Sir  Matthew  Hales  Pleas  of  the  Crown,  only  some  old 

sea  cause  great  miscliief,  public  policy  might  require  the  Court  of  State  to  en- 
join the  sale. 

But  Lord  Keeper  North  said:  "I  do  not  apprehend  the  Chancery  to  be  in  the 
least  a  Covn't  of  State;  neither  can  I  grant  an  injunction  in  any  case;  but 
where  a  man  has  a  plain  right  to  be  quieted  in  it."  He  therefore  recommended 
a  trial  at  law  to  establish  the  right,  "and  when  the  trial  is  over,  come  back 
again." 


162  GYLES  V.  WILCOX  [part  i. 

statutes  have  been  left  out  which  are  now  repealed;  and  in  this  new  work 
all  the  Latin  and  French  quotations  in  the  llistoria  Placitorum  Coronas 
are  translated  into  English;  and  for  this  reason  it  is  insisted  the  de- 
fendant is  within  the  letter  of  an  act  of  parliament,  made  in  the  eighth 
year  of  queen  Ann,  c.  19.  intitled,  An  act  for  encouragement  of  learning, 
by  vesting  the  copies  of  printed  books  in  tlie  authors,  or  purchasers  of 
such  copies,  during  the  term  of  fourteen  years. 

Lord  Chancellor.  The  question  is.  Whether  this  book  of  the 
New  Crown  Law,  which  the  defendant  has  published,  is  the  same 
with  Sir  Matthew  Hale's  Histor.  Placit.  Corona?,  the  copy  of  which  is 
now  the  property'  of  the  plaintiff. 

Where  books  are  colourably  shortened  only,  they  are  undoubtedly  with- 
in the  meaning  of  the  act  of  parliament,  and  are  a  mere  evasion  of  the 
statute,  and  cannot  be  called  an  abridgment. 

But  this  must  not  be  carried  so  far  as  to  restrain  persons  from  making 
a  real  and  fair  abridgment,  for  abridgments  may  with  great  propriety  be 
called  a  new  book,  because  not  only  the  paper  and  print,  but  the  inven- 
tion, learning,  and  judgment  of  the  author  is  shewn  in  them,  and  in 
many  cases  are  extremely  useful,  though  in  some  instances  prejudicial, 
by  mistaking  and  curtailing  the  sense  of  an  author. 

If  I  should  extend  the  rule  so  far  as  to  restrain  all  abridgments,  it 
would  be  of  mischievous  consequence,  for  the  books  of  the  learned,  les 
Journels  des  Scavans,  and  several  others  that  might  be  mentioned,  would 
be  brought  within  the  meaning  of  this  act  of  parliament. 

In  the  present  case  it  is  merely  colourable,  some  words  out  of  the  His- 
tor; a  Placitorum  Coronae  are  left  out  onh%  and  translations  given  instead 
of  the  Latin  and  French  quotations  that  are  dispersed  through  Sir  Mat- 
thew Hale's  works ;  yet  not  so  flagrant  as  the  case  of  Read  versus  Hodges, 
for  there  they  left  out  whole  pages  at  a  time:  but  I  shall  not  be  able  to 
determine  this  properly,  unless  both  books  were  read  over,  and  the  case 
fairly  stated  between  the  parties. 

Mr.  Attorney  General  has  said  I  may  send  it  to  law  to  be  determined 
by  a  jury;  but  how  can  this  possibly  be  done?  It  would  be  absurd  for 
the  chief  justice  to  sit  and  hear  both  books  read  over,  which  is  abso- 
lutely necessary,  to  judge  between  them,  whether  the  one  is  only  a  copy 
from  the  other. 

The  court  is  not  under  an  indispensable  obligation  to  send  all  facts  to 
a  jury,  but  may  refer  them  to  a  master,  to  state  them,  where  it  is  a  ques- 
tion of  nicety  and  difficulty,  and  more  fit  for  men  of  learning  to  inquire 
into,  than   a  common  jury. 

This  I  think  is  one  of  those  cases  where  it  would  be  much  better  for 
tlic  parties  to  fix  upon  two  persons  of  learning  and  abilities  in  the 
possession  of  the  law,  who  would  accurately  and  carefully  compare  them, 
and  report  their  opinion  to  the  court. 

The  IIouRo  of  Lords  very  often,  in  matters  of  account  which  are  ex- 
tremely perplexed  and  intricate,  refer  it  to  two  merchants  named  by  the 


CHAP.  IV.]  BOULTON  V.  BULL  163 

parties,  to  consider  tho  case,  and  report  their  opinions  upon  it,  rather 
than  leave  it  to  a  jury ;  and  I  should  think  a  reference  of  the  same  kind 
in  some  measure  would  be  the  properest  method  in  the  present  case.' 


BOULTON  V.  BULL. 

In  Chancery,  before  Lord  Chancellor  Loughborough,  1796. 

[3   Vesey  140.] 

Boulton  and  Watts  had  obtained  a  patent  for  a  fire-enpine ;  under 
which  they  had  been  in  possession  twenty-seven  years/  The  bill  was  filed 
for  an  injunction  to  restrain  Defendants  from  infringing  the  patent; 
and  an  injunction  was  obtained,  that  the  question  as  to  the  validity  of  the 
patent  might  be  tried  in  an  action.  The  Plaintiffs  brought  an  action  in 
ihe  Court  of  Common  Pleas;  and  obtained  a  verdict,  subject  to  the  opin- 
ion of  the  Court  upon  a  case  stated.  Upon  argument  of  that  case  the 
Court  was  equally  divided.' 

Mr.  Graham  and  Mr.  Alexander  moved  to  dissolve  the  injunction. 

Attorney  General  [Sir  John  Scott],  for  the  Plaintiffs.  It  is  the  most 
ordinary  jurisdiction  of  the  Court  to  say,  they  will  not  alter  the  posses- 
sion, till  the  right  is  decided.  In  the  case  of  waste  it  is  the  specific  right 
of  the  party  to  have  the  interference  of  the  Court.  In  that  case  the 
Court  would  not  permit  the  timber  to  be  cut  upon  giving  security  for  the 
value.  So  here  there  is  a  specific  right,  which  the  law  will  protect.  I 
admit,  we  are  bound  to  bring  another  action. 

Lord  Chancellor  [Loughborough].  I  cannot  put  the  patentees  upon 
the  acceptance  of  terms,  that  upon  collateral  reasons  they  think  may 
be  disadvantageous  to  the  exercise  of  the  right,  of  which  they  are  in  full 
possession :  neither  can  I  put  them  out  of  possession  upon  the  difference 
of  opinion  of  the  Court.  That  is  not  the  fault  of  the  Plaintiffs.  What 
has  passed  in  the  Court  of  Common  Pleas  does  not  shake  their  right;  but 
strongly  supports  it.  The  verdict,  though  it  has  failed  of  effect,  is  not 
to  be  disregarded.  The  opinions  of  the  Judges  on  both  sides  are  de- 
serving of  great  respect.  If  nothing  can  be  done  upon  this,  there  must 
be  another  action.  In  the  mean  time  the  injunction  must  be  continued. 
I  will  not  put  them  to  compensation.  I  will  not  disturb  the  possession  of 
their  specific  right.  It  is  of  notoriety,  that  this  fire-engine  has  been 
erected  in  many  parts  of  the  country  with  great  advantage. 

'  See  same  case  in  3  Atk.  269  in  which  the  question  of  infringement  was  re- 
ferred to  two  arbiters  for  report. 

'The  patent,  which  was  originally  granted  in  1769  for  14  years,  was  by  Stat. 
15,  Geo.  III.  renewed  for  25  years. — Reporter's  note. 

'2  H.  Blackst.  453;  Hornblower  v.  Bolton,  8  Term  Rep.  95.— Reporter's 
note. 


164  LIVINGSTON  v.  VAN  INGEN  [part  i. 

For  the  Defendants.  It  was  then  desired,  that  the  action  might  be 
brought  in  the  Court  of  King's  Bench :  to  which  it  was  answered,  that 
they  might  have  a  special  verdict  in  the  Common  Pleas;  upon  which 
there  might  be  a  writ  of  error. 

Lord  Chancellor.  I  will  not  lay  them  under  any  terms  in  bringing  the 
action.' 


LIVINGSTON  V.  VAN  INGEN. 

Court  of  Errors  of  New  York,  1812. 

[9    Johnson    507.] 

On  appeal  from  the  decree  of  the  Chancellor  refusing  an  injunction 
prayed  by  Robert  E.  Livingston  and  Robert  Fulton  to  whom  the  legis- 
lature of  the  state  had  granted  the  exclusive  right  of  "  Constructing, 
making,  using,  employing,  and  navigating  all  and  every  species  or  kinds 
of  boats,  or  water  craft  which  might  be  urged  or  impelled  through  the 
water  by  the  force  of  fire  or  steam,  in  all  creeks,  rivers,  bays  and  waters 
whatsoever  within  the  territory  and  jurisdiction  of  New  York."  The  bill 
alleged  that  the  respondents  in  contravention  of  this  exclusive  right  were 
navigating  a  steamboat  upon  the  Hudson  without  any  license  from  the 
appellants. 

Kent,  Chief  Justice."  If  the  legal  right  be  in  favor  of  the  appellants, 
the  remedy  prayed  for  by  their  bill  is  a  matter  of  course.  One  of  the 
learned  counsel  for  the  respondents,  with  his  usual  frankness,  seemed, 
in  a  great  degree,  to  concede  this  point. 

Injunctions  are  always  granted  to  secure  the  enjoyment  of  statute 
jirivileges  of  which  the  party  is  in  the  actual  possession,  unless  the  right 
be  doubtful.  This  is  the  uniform  course  of  the  precedents.  I  believe 
there  is  no  case  to  the  contrary;  and  the  decisions  in  the  English  Chan- 
cery, on  this  point,  were  the  same  before  as  since  the  American  revolu- 
tion ;  and  we  are,  consequently,  bound  by  them  as  a  branch  of  the 
common  law.  It  appears,  by  the  facts  stated  in  the  bill,  and  which  we 
must  take  to  be  true,  as  they  have  been  sworn  to,  and  are  not  answered  or 
denied,  that  the  appellants  had  been,  for  three  years,  in  the  actual  and 
exclusive  enjoyment  of  their  statute  privilege  when  the  respondents  in- 
terfered to  disturb  that  right  and  that  enjoyment. 

It  will  be  necessary  to  attend,  for  a  moment,  to  the  most  prominent 
English  cases,  on  the  subject  of  injunctions;  and  on  this  point  I  shall 
be  very  brief. 

'  Ilarnier  v.  Plane,  post,  vol.  xiv.,  1.30;  Hill  v.  Thompson,  3  Mer.  G22. — Re- 
poitfr's  note. 

-Only  ;i   juirt  of  llic  ()i)inion  cf  tlio  learned  Chief  Justice  is  given. 


CHAP.  IV.]  LIVINGSTON  i^.  VAN  INGEN  165 

In  Gyles  v.  Wilcox  and  others,  which  was  as  early  as  the  year  1740, 
(2  Atk.  141.  S.  C.  3  Atk.  209,)  there  was  a  bill  filed  for  an  injunction 
to  stay  the  printing  of  a  book,  on  suggestion,  that  the  book,  pretend- 
ing to  be  a  different  work,  was  in  truth,  an  invasion  of  the  complainant's 
copyright,  under  the  statute  of  Anne.  The  lord  chancellor  referred  the 
cause,  by  consent,  to  arbitrators,  to  examine  whether  the  one  book  was  a 
copy  from  the  other ;  and  though  that  point  was  not  clear,  he  allowed  an 
injunction  and  continued  it  in  the  mean  time.  So,  also,  in  the  case  of 
Blackwell  t'.  Harper,  in  the  year  1740,  (2  Atk.  92,)  a  bill  was  exhibited 
to  establish  a  right  under  a  statute  of  8  Geo.  II.  c.  13,  for  encouraging 
the  arts  of  designing,  engraving,  &c.  and  to  restrain  the  defendant  from 
copying  the  complainant's  engravings  of  medicinal  plants,  and  an  in- 
junction was  decreed,  though  the  statute  said  nothing  about  an  injunc- 
tion, and  had  given,  as  against  the  offender,  a  forfeiture  of  the  plates  and 
sheets  engraved,  and  an  additional  penalty  of  five  shillings  for  every 
print,  to  be  recovered  by  suit  at  law.  In  another  case,  in  the  same  year, 
1740,  before  the  same  chancellor,  (1  Ves.  476,)  he  admitted,  that  when 
the  right  appeared  by  matter  of  record,  or  was  grounded  upon  an  act  of 
parliament,  it  was  a  foundation  for  an  injunction  before  answer.  These 
cases  I  have  particularly  selected,  because  two  of  them  w'ere  cases  of 
injunction,  founded  on  a  statute  right,  and  where  the  statute  had  also 
given  a  forfeiture,  and  because  these  cases  were  long  before  our  revolu- 
tion, and  were  the  decisions  of  so  correct  and  distinguished  a  chancellor 
as  Lord  Hardwicke. 

It  is  impossible,  in  any  cause,  to  produce  cases  more  in  point  or  more 
controlling;  and  they  put  the  authority  and  duty  to  grant  an  injunction, 
in  a  case  of  clear  statute  right,  beyond  contradiction.  There  are  many 
other  cases  in  the  English  Chancery,  to  the  like  effect,  all  of  which  I 
shall  not  stay  to  examine.  (Baskett  v.  Parsons,  1718,  decided  by  Sir  J. 
Jekyl,  and  cited  in  13  Ves.  493 ;  Smith  v.  Clark,  Dick.  455 ;  Hicks  v. 
Eaincock,  Dick.  647;  Pope  v.  Curl,  2  Atk.  342;  Bell  v.  Walker  and 
others,  1  Bro.  451.)  It  will  be  sufficient,  by  referring  to  a  few  of  them, 
to  show  the  uniform  language  of  the  equity  courts.  The  case  of  The 
City  of  London  i'.  Pughs  (3  Bro.  Ch.  Cas.  374)  arose  as  early  as  1727, 
and  as  it  was  decided  by  the  House  of  Lords,  upon  an  appeal,  it  merits 
the  more  attention.  The  question  there  was,  on  a  penalty  given  by  a 
lease  of  one  hundred  pounds  an  acre,  for  digging  up  the  soil,  and  yet 
the  court  ordered  that  the  chancellor  issue  an  injunction  until  the  hear- 
ing, to  stay  the  trespass,  notwithstanding  the  party  had  his  remedy  for 
the  penalty.  In  the  case  of  Bolton  v.  Bull,  which  was  in  chancery,  as 
late  as  1796,  (3  Ves.  140,)  there  was  a  bill  for  an  injunction  against 
infringing  a  patent  right  for  a  fire  engine,  and  it  was  granted,  and  the 
validity  of  the  patent  was  left,  in  the  mean  time,  to  be  tried  at  law.  It 
was  there  admitted  to  be  the  most  ordinary  jurisdiction  of  the  Court  of 
Chancery,  not  to  alter  the  possession  until  the  right  was  decided,  and  the 
party  in  enjoyment  of  his  patent  privilege  was  considered   as  in  such 


166  LIVINGSTON  v.  VAN  INGEN  [part  i. 

possession.  In  a  late  case,  before  the  present  Lord  Chancellor  Eldon, 
(The  Universities  v.  Richardson,  6  Ves.  707)  it  was  held,  that  in  the 
case  of  a  patent  right,  if  the  party  gets  his  patent  and  puts  it  in  execu- 
tion, his  possession,  under  color  of  that  title,  is  good  enough  to  enjoin 
a  disturber  from  interfering,  and  to  continue  the  injunction  until  it  is 
proved  at  law  that  he  had  no  title.  In  a  still  later  case,  (14  Ves.  130,) 
the  court  expressed  itself  in  strong  terms  against  the  invasion  of  a 
patent  right,  and  said,  that  unless  the  injunction  was  granted,  any  per- 
son might  violate  the  patent,  and  the  consequence  would  be,  that  the 
patentee  would  be  harassed  with  litigation. 

I  cite  these  later  cases  to  show  that  the  law  has  been  settled,  in 
England,  for  the  last  seventy  years  at  least,  and  has  been  preserved  in 
a  steady,  uniform  course,  under  a  succession  of  their  ablest  and  wisest 
men.  The  principle  is,  that  statute  privileges,  no  less  than  common  law 
rights,  when  in  actual  possession  and  exercise,  will  not  be  permitted  to  be 
disturbed,  until  the  opponent  has  fairly  tried  them  at  law,  and  over- 
thrown their  pretension.  And  is  not  this  a  most  excellent  principle, 
calculated  to  preserve  peace,  and  order,  and  morals,  in  the  community; 
and  if  it  was  not  the  law,  yet  deserving  to  be  the  law,  and  well  worthy  of 
our  encouragement  and  sanction  ?  The  federal  courts  in  this  country 
have  thought  so ;  for  under  the  patent  law  of  congress,  they  have  equally 
protected  the  right  by  injunction.  The  case  of  Morse  v.  Reid  was  an 
injunction  bill  filed  in  1796,  to  restrain  the  defendant  from  reprinting 
Winterbotham's  History,  which,  the  complainant  alleged,  was  an  inva- 
sion of  the  copyright  of  his  American  Geography.  The  propriety  of  the 
injunction  was  not  questioned;  it  issued  in  the  first  instance.  The  com- 
plainant recovered  1,500  dollars,  and  the  injunction  was  made  per- 
petual. So  in  the  late  case  of  Whitney  v.  Fort,  which  arose  in  Georgia, 
upon  a  violation  of  the  complainant's  patent  for  a  machine  for  cleaning 
cotton,  an  injunction  was  granted,  in  the  first  instance,  and  was  after- 
wards made  perpetual,  at  the  Circuit  Court,  at  which  Judge  Johnson 
presided.  As  far,  then,  as  authority  goes,  it  is  in  favor  of  the  injunction, 
and  if  we  are  satisfied,  in  this  case,  of  the  appellants'  right,  we  cannot 
hesitate  about  the  remedy.  The  act  which  the  legislature  passed  at  the 
last  session,  making  it  expressly  the  duty  of  the  Chancellor  to  grant  an 
injunction  as  to  all  other  boats  except  the  two  then  built,  proves  very 
clearly  the  sense  of  the  legislature  that  this  was  a  fit  and  proper  remedy 
in  the  case.  Those  two  boats  were  excepted  out  of  the  law,  merely  be- 
cause it  was  improper  to  interfere  with  a  pending  suit,  and  the  statute 
did  not  impair  the  pre-existing  remedy  by  injunction;  it  only  made  it 
more  clear  and  peremptory  thereafter;  and  there  is  no  reason  why  the  in- 
jutictif)ri  slu)nld  issue  against  one  set  of  boats,  and  not  against  another. 

It  would  only  be  productive  of  litigation  and  mischief,  to  allow  the 
rcspoiidonts  to  continue  the  use  of  their  boats,  if  the  right  be  against 
lhc!n.  Their  counsel  admit  that  they  must  not  only  forfeit  the  boats, 
but  must  answer  in  damages  for  all  the  intermediate  profits.    If  the  legal 


CHAP.  IV.]  LIVINGSTON  v.  VAN  INGEN  167 

right  be  with  the  appellants,  this  is  the  proper  court,  and  this  is  the 
proper  time  to  declare  it.  This  court,  from  its  peculiar  constitutional 
structure,  unites  with  it  the  highest  court  of  common  law,  and  nothing 
would  be  more  useless  than  to  withhold  an  injunction  until  the  chan- 
cellor had  sent  the  question  to  be  tried  at  law,  when  the  judges  before 
whom  it  is  to  be  tried,  are  members  of  this  court,  and  have  already 
declared  their  opinion.  The  legal  (juestion  can  never  be  tried  by  a  jury. 
It  is  not  a  question  of  fact.  The  single  point  is  the  constitutionality  of 
the  statutes.  That  point  never  can  be  more  fully  and  more  ably  argued 
than  it  has  been  before  this  court,  and  if  we  are  of  opinion  that  the 
acts  are  constitutional,  they  must  be  obeyed.  We  are  bound  to  cause 
them  to  be  obeyed.    There  is  no  escape  from  this  duty. 

If  we  refuse  the  injunction,  it  ought  to  be  for  some  substantial  reason. 
We  must  not  put  it  upon  the  mei'e  hoc  vola,  sic  juheo,  sit  pro  ratione 
voluntas.  There  must  be  some  solid  principle,  that  will  correspond  with 
the  character,  as  well  as  satisfy  the  conscience  of  this  court.  If  the  laws 
are  valid,  it  would  be  of  pernicious  consequence  not  to  arrest  the  further 
progress  of  their  violation.  It  is  impossible  for  any  act  to  be  committed 
which  attracts  more  universal  notice,  and  if  wrong  and  illegal,  none 
which  has  a  more  fatal  influence  upon  the  general  habits  of  respect  and 
reverence  for  the  legislative  authority.  The  boats  cannot  run  but  in  the 
face  of  day,  and  in  the  presence,  as  it  were,  of  the  whole  people,  whose 
laws  are  set  at  defiance,  nor  without  seducing  thousands,  by  the  con- 
tagion of  example,  into  an  approbation  and  support  of  the  trespass. 

I  am  sensible  that  the  case  is  calculated  to  excite  sympathy.  I  feel 
it  with  others,  and  I  sincerely  wish  that  the  respondents  had  brought  the 
laws  to  a  test,  at  less  risk  and  expense;  for  every  one  who  had  eyes  to 
read,  or  ears  to  hear  the  contents  of  our  statute  book,  must  have  been 
astonished  at  the  boldness  and  rashness  of  the  experiment.  But  in  pro- 
portion to  the  respectability  and  strength  of  the  combination,  should  be 
the  vigor  of  our  purpose  to  maintain  the  law.  If  we  were  to  suffer  the 
plighted  faith  of  this  state  to  be  broken,  upon  a  mere  pretext,  we  should 
become  a  reproach  and  a  by-word  throughout  the  union.  It  was  a  saying 
of  Euripides,  and  often  repeated  by  Caesar,  that  if  right  was  ever  to  be 
violated,  it  was  for  the  sake  of  power.  We  follow  a  purer  and  nobler 
system  of  morals,  and  one  which  teaches  us  that  right  is  never  to  be 
violated.  This  principle  ought  to  be  kept  steadfast  in  every  man's 
breast;  and  above  all,  it  ought  to  find  an  asylum  in  the  sanctuary  of 
justice. 

I  am  accordingly  of  opinion,  that  the  order  of  the  Court  of  Chancery 
be  reversed,  and  that  an  injunction  be  awarded. 


168  CROTON  TURNPIKE  COMPANY  v.  RYDER        [part  i. 


CROTON  TURNPIKE  COMPANY  v.  RYDER. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor 

Kent,  1815. 

[1  Johnson's   Chancery  611.] 

A  bill  to  enjoin  interference  of  the  defendant  with  the  franchise  of 
the  plaintiffs  to  maintain  a  toll  road. 

The  Chancellor.  The  plaintiffs  have  shown  a  clear  and  undisputed 
right,  by  statute,  to  the  taking  of  toll  at  the  gates,  and  for  the  use  of  the 
turnpike  road  mentioned  in  the  pleadings.  They  were,  likewise,  at  the 
commencement  of  the  suit,  in  the  actual  possession  and  exercise  of  that 
exclusive  right;  and  the  question  is,  whether  the  establishment  of  the 
open  and  common  road,  designated  on  the  map  by  the  figures  1,  2,  3,  be 
not  a  disturbance  of  that  right,  amounting  to  a  private  nuisance. 

There  can  be  no  question  as  to  the  right  of  the  plaintiffs.  It  was 
given  to  them  by  the  acts  of  the  legislature  of  the  13th  of  March,  1807, 
and  the  18th  of  March,  1808;  and  it  is  shown  and  admitted,  that  they 
conformed  to  the  conditions  upon  which  the  grant  was  made.  The  road 
was  duly  laid  out,  and  report  duly  made  by  commissioners  appointed 
according  to  law,  and  the  gates  were  then  erected  in  pursuance  of  the 
governor's  license.  The  road,  as  worked  and  constructed,  was  also 
established  by  the  act  of  the  8th  of  April,  1811.  The  defendants  admit 
that  they  combined  together  to  purchase  jointly  of  William  Haight,  the 
strip  of  land  on  which  the  road  marked  1,  2,  3,  complained  of,  was  estab- 
lished and  opened.  They  admit  the  consideration  of  250  dollars  was 
raised  by  contribution,  and  a  deed  in  fee  taken  to  all  of  them,  except 
I'rederick  Graham,  on  the  10th  of  December,  1811.  They  admit  that 
they  purchased  the  land  to  be  laid  out  as  a  road  for  their  benefit,  and 
because  it  would  be  a  public  advantage.  They  admit  that  this  new  road 
has  not  been  established  as  a  public  road ;  and  that  the  distance  by  that 
road  from  A.  to  D.,  on  the  map,  is  only  4  chains  and  1  link  shorter  than 
the  distance  between  the  same  points  by  the  way  of  the  toll-gate.  They 
admit  that  the  new  road  has  been  kept  open  for  public  use  and  travel,  and 
maintained  as  such  by  private  expense,  by  not  impeding  travellers  from 
using  it;  and  they  admit  that  this  road  may,  and  does,  enable  persons  to 
avoid  passing  through  the  gate  and  paying  toll  to  the  plaintiffs.  After 
these  admissions,  it  is  in  vain  for  the  defendants  to  allege  that  the  road 
was  established  without  any  views  injurious  to  the  rights  of  the  plain- 
tiffs. The  facts  speak  for  themselves;  and  I  think  it  is  impossible  for 
any  person  to  cast  his  eye  upon  the  map,  which  is  made  an  exhibit  in  the 
cause,  without  being  struck,  at  once,  with  the  conviction,  that  the 
injury  is  direct,  palpable,  and  inevitable,  and  that,  if  no  such  turnpike 
gate  existed,  no  such  new  road  would  have  been  purchased,  made,  and 
kept  ox)en. 


CHAP.  IV.]    VICKSBURG  WATERWORKS  CO.  v.  VICKSBURG    169 

It  is,  then,  a  plain  case  of  a  material  and  mischievous  disturbance  of 
the  plaintiffs  in  the  enjoyment  of  the  statute  privilege,  which  was  granted 
to  them  by  the  legislature  for  public  purposes,  and  founded  on  a  valuable 
consideration. 

The  only  question  is  as  to  the  remedy,  and  this  appears  to  me  to  be 
equally  certain. 

It  is  settled  that  an  injunction  is  the  proper  remedy  to  secure  to  a 
party  the  enjoyment  of  a  statute  privilege,  of  which  he  is  in  the  actual 
possession,  and  when  his  legal  title  is  not  put  in  doubt.  The  English 
books  are  full  of  cases  arising  under  this  head  of  equity  jurisdiction. 
(Bush  V.  Western,  Prec.  in  Chan.  530.  Whitchurch  v.  Hide,  2  Atk. 
391.)  But  I  need  not  enter  into  this  discussion,  for  the  point  has  been 
recently  settled  in  this  state,  in  the  case  of  Livingston  and  Fulton  v. 
Van  Ingen  and  others,  (9  Johns.  Rep.  50Y,)  and  I  shall  rest  upon  the 
authority  of  that  case,  and  upon  the  application  of  the  principles  on 
which  it  was  decided. 

The  equity  jurisdiction  in  such  a  case  is  extremely  benign  and 
salutary.  Without  it,  the  party  would  be  exposed  to  constant  and 
ruinous  litigation,  as  well  as  to  have  his  right  excessively  impaired  by 
frauds  and  evasion. 

If  such  a  contrivance  as  this  case  presents,  is  to  be  tolerated,  all  our 
statute  privileges  of  the  like  kind,  on  which  millions  have  been  ex- 
pended, would  be  rendered  of  little  value,  and  the  moneys  have  been 
laid  out  in  vain. 

I  shall,  accordingly,  decree,  that  the  defendants  be  perpetually  enjoined 
from  opening  or  using,  or  permitting  to  be  opened  and  used,  as  a  road 
for  public  use  or  travel,  the  road  designated  on  the  map  by  the  figures 
1,  2,  3;  and  that  the  same  be  closed  up  so  as  to  hinder  persons  travelling 
on  the  turnpike  road  from  using  it  as  an  open  road ;  and  that  the  defend- 
ants, except  Frederick  Graham,  pay  the  costs  of  this  suit;  and  that  the 
bill,  as  to  him  be  dismissed. 


In  ViCKSBURo  Waterworks  Co.  v.  Vicksburg  (1902),  185  U.  S.  65,  81, 
Mr.  Justice  Shiras  said:  The  bill  prays  for  an  injunction  to  restrain  the 
defendant  from  assuming  to  abrogate  and  take  away  the  franchises  and 
contract  rights  of  the  complainant,  and  from  attempting  to  coerce  the 
company  to  sell  its  works  to  the  defendant  for  an  inadequate  price,  and 
that  said  act  of  the  legislature  of  Mississippi,  adopted  on  March  9,  1900, 
and  said  resolution  and  ordinance  adopted  and  passed  by  said  city  on  the 
7th  day  of  November,  1900,  be  declared  to  impair  the  obligations  of  said 
contract  between  said  city  and  said  Bullock  &  Company  and  their  assigns, 
and  to  cast  a  cloud  upon  the  title,  franchises  and  rights  of  complainant, 
and  said  act,  ordinance  and  resolution,  and  each  of  them,  are  alleged  to 
be  in  contravention  of  the  Constitution  of  the  United  States  in  this,  that 


170    VICKSBUEG  WATERWORKS  CO.  v.  VICKSBURG     [part  i. 

they  impair  the  obligations  of  said  contract  between  said  city  and  sai<l 
Bullock  &  Company  and  their  assigns. 

It  cannot  be  seriously  contended  that,  under  the  act  of  March  18, 
1886,  authorizing  the  city  to  provide  for  the  erection  and  maintenance  of 
a  system  of  waterworks,  and  to  contract  with  a  party  or  parties  to  build 
and  operate  waterworks,  and  under  the  ordinance  of  the  city  of  Novem- 
ber 18,  1896,  providing  for  a  supply  of  water  to  the  city  and  its  in- 
habitants by  contracting  with  Samuel  R.  Bullock  &  Company,  their 
associates,  successors  and  assigns,  and  the  acceptance  of  said  ordinance 
by  Samuel  R.  Bullock  &  Company,  no  contract  was  entered  into.  The 
subject-matter  of  the  contract  was  within  the  powers  of  the  city  to  make; 
the  terms  are  explicitly  set  forth  in  the  ordinance;  the  works  erected 
were  approved  by  the  city,  and  the  respective  obligations  created  by  the 
contract  were  duly  complied  with  without  question  or  complaint,  for  a 
period  of  fourteen  years. 

Whether  this  act  of  the  legislature  of  Mississippi  is,  in  its  terms, 
subject  to  those  objections,  or  whether  it  may  be  regarded  as  merely 
authorizing  the  city  to  proceed  in  such  a  manner  as  not  to  conflict 
■with  existing  contract  obligations,  we  need  not  determine  at  this  stage 
of  the  case,  because  we  think  that  the  ordinance  of  the  city  of  November 
7,  1900,  whereby  the  mayor  was  instructed  to  notify  the  waterworks  com- 
pany that  the  mayor  and  aldermen  deny  any  liability  upon  any  contract 
for  the  use  of  the  waterworks  hydrants,  and  the  subsequent  action  of  the 
city  in  holding  an  election  to  avithorize  the  issue  of  bonds  to  buy  or  con- 
struct waterworks  of  its  own,  and  in  refusing  to  pay  the  amount  due  and 
payable  under  the  terms  of  the  ordinance,  do  not  present  the  mere  case  of 
a  breach  of  a  private  contract  to  be  remedied  by  an  action  at  law,  but  dis- 
close an  intention  and  attempt,  by  subsequent  legislation  of  the  city,  to 
deprive  the  complainant  of  its  rights  under  an  existing  contract;  and. 
that,  therefore,  unless  the  city  can  point  to  some  inherent  want  of  legal 
validity  in  the  contract,  or  to  some  such  disregard  by  the  waterworks 
company  of  its  obligations  under  the  contract  as  to  warrant  the  city  in 
declaring  itself  absolved  from  the  contract,  the  case  presented  by  the  bill 
is  within  the  meaning  of  the  Constitution  of  the  United  States  and 
within  the  jurisdiction  of  the  Circuit  Court  as  presenting  a  Federal 
question. 

It  is  further  contended  that  the  bill  does  not  disclose  any  actual  pro- 
ceeding on  the  part  of  the  city  to  displace  complainant's  rights  under  the 
contract,  that  mere  apprehension  that  illegal  action  may  be  taken  by  the 
city  cannot  be  the  basis  of  enjoining  such  action,  and  that  therefore  the 
Circuit  Court  did  right  in  dismissing  the  bill.  We  cannot  accede  to  this 
contention.  It  is  one  often  made  in  cases  where  bills  in  equity  are  filed 
to  prevent  anticipated  and  threatened  action.  But  it  is  one  of  the  most 
valuable  features  of  equity  jurisdiction,  to  anticipate  and  prevent  a 
threatened  injury,  where  the  damages  would  be  insuflicient  or  irreparable. 
The  exercise  of  such  jurisdiction  is  for  the  benefit  of  both  parties;  in 


CHAP.  IV.]        LEATIIEK  CLOTH  CO.  v.  AM.  CLOTH  CO.  171 

disclosing  to  the  defendant  that  he  is  proceeding  without  warrant  of 
law,  and  in  protecting  the  complainant  from  injuries  which,  if  inflicted, 
would  be  wholly  destructive  of  his  rights.' 


LEATHER  CLOTH  COMPANY,  LTD.  v.  AMERICAN  LEATHER 
CLOTH  COMPANY. 

In  Chancery,  before  Lord  Chancellor  Westbury,  1864. 

[10  Jurist,  new  series,  81.] 

This  was  an  appeal  by  the  defendants  from  a  decree  of  Sir  W.  P. 
Wood,  V.  C.  (reported  1  Hem.  &  Mil.  271),  whereby  his  Honor  granted 
a  perpetual  injunction  in  a  suit  instituted  for  the  purpose  of  restraining 
the  defendants  from  an  alleged  infringement  of  the  plaintiffs'  trade- 
mark.   The  facts  sufficiently  appear  in  the  judgment  below. 

Lord  Chancellor. — LTpon  a  review  of  the  numerous  cases  which  have 
heen  decided  in  this  court  on  the  subject  of  trade-marks,  there  appears 
to  be  some  uncertainty  and  want  of  precision  in  the  language  of  the 
different  judges,  as  to  the  ground  on  which  a  court  of  equity  interferes 
to  protect  the  enjoyment  of  a  trade-mark,  and  also  on  the  question 
whether  the  right  to  use  a  trade-mark  admits  of  being  sold  and  trans- 
ferred by  one  man  to  another. 

At  law  the  remedy  for  the  piracy  of  a  trade-mark  is  by  an  action  on  the 
■case,  in  the  nature  of  a  writ  of  deceit.  This  remedy  is  founded  on  fraud, 
and  originally  it  seems  that  an  action  was  given,  not  only  to  the  trader 
whose  mark  had  been  pirated,  but  also  to  the  buyer  in  the  market,  if  he 
liad  been  induced  by  the  fraud  to  buy  goods  of  an  inferior  quality.  In 
■equity,  the  right  to  give  relief  to  the  trader  whose  trade  has  been  in- 
jured by  the  piracy,  appears  to  have  been  originally  assumed  by  reason  of 
the  inadequacy  of  the  remedy  at  law,  and  the  necessity  of  protecting 
property  of  this  description  by  injunction.  But  although  the  jurisdic- 
tion is  now  well  settled,  there  is  still  current  in  several  recent  cases 
language  which  seems  to  me  to  give  an  inaccurate  statement  of  the  true 
ground  on  which  it  rests.  In  Croft  v.  Day  (7  Beav.  88)  and  Perry  v. 
Truefitt  (6  Beav.  73),  the  late  Lord  Langdale  is  reported  to  have  used 
words  which  place  the  jurisdiction  of  this  Court  to  grant  relief  in  cases 
of  the  piracy  of  trade-marks,  entirely  on  the  ground  of  the  fraud  that  is 
committed  when  one  man  sells  his  own  goods  as  the  goods  of  another. 
The  words  of  the  learned  judge  are — "  I  own  it  does  not  seem  to  me  that 

^  The  case  made  a  final  appearance  before  the  Supreme  Court,  and  the  views 
expressed  in  the  previous  hearing  were  reaffirmed.  Vieksburg  Water  Works 
Co.  V.   Vieksburg   (190G)    202  U.  S.  453. 


172  LEATHEE  CLOTH  CO.  v.  AM.  CLOTH  CO.  [part  i. 

a  man  can  acquire  a  property  merely  in  a  name  or  mark;"  and,  in  like 
manner,  the  learned  Vice-Chancellor  whose  decision  I  am  now  revising, 
is  reported  to  have  said,  "  This  question  never  rests  upon  property  at 
all,  but  it  is  simply  a  question  whether  or  not  the  act  of  the  defendant 
is  such  an  act  as  to  hold  out  that  his,  the  defendant's,  goods  are  the 
manufacture  of  another  person."  But,  with  great  respect,  this  is  hardly 
an  accurate  statement;  for,  tirst,  the  goods  of  one  man  may  be  sold  as 
the  goods  of  another  without  giving  to  that  other  person  a  right  to  com- 
plain, unless  he  sustains,  or  is  likely  to  sustain,  from  the  wrongful  act 
some  pecuniary  loss  or  damage.  Thus,  in  the  case  of  Clarke  v.  Freeman 
(11  Beav,  112),  an  eminent  physician,  Sir  James  Clarke,  applied  for  an 
injunction  to  restrain  a  chemist  from  publishing  and  selling  a  quack 
medicine  under  the  name  of  "  Sir  James  Clarke's  Pills ;"  but  the  Court 
refused  to  interfere,  because  it  did  not  appear  that  Sir  James  had  sus- 
tained any  pecuniary  injury.  And,  secondly,  it  is  not  requisite  for  the 
exercise  of  the  jurisdiction  that  there  should  be  fraud  or  imposition 
practised  by  the  defendant  at  all.  The  Court  will  grant  relief,  although 
the  defendant  had  no  intention  of  selling  his  own  goods  as  the  goods 
of  the  plaintiff,  or  of  practising  any  fraud  either  on  the  plaintiff  or 
the  public. 

If  the  defendant  adopts  a  mark  in  ignorance  of  the  plaintiff's  exclusive 
right  to  it,  and  without  knowing  that  the  symbols  or  words  so  adopted 
and  used  are  already  current  as  a  trade-mark  in  the  market,  his  acts, 
though  innocently  done,  will  be  a  sufficient  ground  for  the  interference 
of  this  Court.  This  is  plain  from  the  decision  of  Lord  Cottenham  in  the 
case  of  Millington  v.  Fox  (ubi  sup.),  to  which  I  entirely  assent,  and  from 
the  learned  Vice-Chancellor's  own  opinion  in  the  case  of  Welch  v.  Knott 
C4  Kay  &  J.  747).  Imposition  on  the  public,  occasioned  by  one  man 
selling  his  goods  as  the  goods  of  another,  cannot  be  the  ground  of  private 
action  or  suit.  In  the  language  of  Lord  Thurlow  in  Webster  v.  Webster 
(?)  Swanst.  490,  note),  fraud  upon  the  public  is  no  ground  for  the  plain- 
tiff's coming  into  this  Court.  It  is,  indeed,  true,  that  unless  the  mark 
used  by  the  defendant  be  applied  by  him  to  goods  of  the  same  kind  as 
the  goods  of  the  plaintiff,  and  be  in  itself  such  that  may  be,  and  is, 
mistaken  in  the  market  for  the  trade-mark  of  the  plaintiff,  the  Court 
will  not  interfere,  because  there  is  no  invasion  of  the  plaintiff's  right; 
and  thus  the  mistake  of  buyers  in  the  market,  under  which  they,  in 
fact,  take  the  defendant's  goods  as  the  goods  of  the  plaintiff — that  is  to 
say,  imposition  on  the  public — becomes  the  test  of  the  property  in  the 
trade-mark  having  been  invnded  and  injured,  but  not  the  ground  on 
which  the  Court  rests  its  jurisdiction.  Tlie  representation  which  the 
defendant  is  supposed  to  make,  that  his  goods  are  the  goods  of  another 
person,  is  not  actually  made  otherwise  than  by  his  appropriating  and 
using  the  trade-mark  which  such  other  person  has  an  exclusive  right  to 
use  in  connection  with  the  sale  of  some  commodity;  and  if  the  plaintiff 
has  an  exclusive  right  so  to  use  any  particular  mark  or  symbol,  it  becomes 


CHAP.  IV.]     EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH    173 

his  property  for  the  purposes  of  such  application,  and  the  act  of  the 
defendant  is  a  violation  of  such  right  of  property,  corresponding  with  the 
piracy  of  copyright  or  the  infringement  of  a  patent.  I  cannot,  there- 
fore, assent  to  the  dictum  that  there  is  no  property  in  a  trade-mark. 

It  is  correct  to  say  that  there  is  no  exclusive  ownership  of  the  symbols 
which  constitute  a  trade-mark  apart  from  the  use  or  application  of  them ; 
but  the  word  "  trade-mark  "  is  the  designation  of  these  marks  or  symbols 
when  applied  to  a  vendible  commodity,  and  the  exclusive  right  to  make 
such  user  or  application  is  rightly  called  property.  The  true  principle, 
therefore,  would  seem  to  be,  that  the  jurisdiction  of  the  Court  in  the 
protection  given  to  trade-marks  rests  upon  property,  and  that  the  Court 
interferes  by  injunction,  because  that  is  the  only  mode  by  which  proxj- 
erty  of  this  description  can  be  effectually  protected. 

The  same  things  are  necessary  to  constitute  a  title  to  relief  in  equity, 
in  the  case  of  the  infringement  of  the  right  to  a  trade-mark,  as  in  the 
case  of  the  violation  of  any  other  right  of  property.  But  when  the  owner 
of  a  trade-mark  applies  for  an  injunction  to  restrain  the  defendant  from 
injuring  his  property  by  making  false  representations  to  the  public,  it  is 
essential  that  the  plaintiff  should  not,  in  his  trade-mark,  or  in  the  busi- 
ness connected  with  it,  be  himself  guilty  of  any  false  or  misleading 
representation;  for  if  the  plaintiff  makes  any  material  false  statement 
in  connection  with  the  property  he  seeks  to  protect,  he  loses,  and  very 
justly,  his  right  to  claim  the  assistance  of  a  court  of  equity.' 


THE  EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH. 

In  the  Court  of  Appeal,  1861. 
[3  De  Gex,  Fisher  d-  Jones  217.] 

The  defendant  Kossuth,  the  distinguished  Hungarian  statesman  and 
patriot,  was  living  in  exile  in  Great  Britain,  and,  in  anticipation  of  an 
uprising  of  the  people  of  Hungary  against  the  Austrian  domination,  he 
persuaded  Messrs.  Day  &  Sons  (well-known  lithographers  of  London) 
to  prepare  plates  for  the  printing  of  notes  purporting  to  be  notes  of 
the  Hungarian  nation.  The  notes  were  intended  for  circulation  as 
money  in  Hungary. 

The  bill  alleged : 

That  the  total  amount  of  these  notes  which  was  being  prepared  was 
upwards  of  100,000,000  florins.  That  Day  &  Sons  had  in  their  pos- 
session   a   large   quantity   of   them   entirely   or   nearly   completed,   and, 

'  See  notes  in  6  Columbia  Law  Rev.  349,  473. 


174    EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH     [part  i. 

unless  resti'ained  by  the  court,  would  deliver  them  to  Kossuth.  That 
Kossuth  intended,  as  soon  as  he  received  them,  to  send  them  to  Hun- 
gary and  endeavor  to  introduce  some  of  them  into  circulation  there, 
and  use  the  remainder  for  other  purposes  in  Hungary,  in  violation  of 
the  rights  and  prerogative  of  the  plaintiff  as  king  of  that  country,  and, 
amongst  other  purposes,  for  the  promotion  of  revolution  and  disorder 
there. 

To  prevent  the  delivery  of  any  of  these  notes  to  Kossuth  and  to 
obtain  the  cancellation  of  the  notes  in  the  possession  of  Day  &  Sons,  and 
to  restrain  them  from  further  printing  the  said  notes,  the  Emperor  of 
Austria  filed  his  bill  in  equity. 

The  relief  prayed  for  v^as  granted  by  Vice-Chancellor  Stuart  and 
from  his  decision  an  appeal  was  taken.' 

The  Lord  Justice  Titrner.^  I  have  but  little  to  add  in  this  case. 
This  bill,  as  I  read  it,  puts  the  plaintiff's  case  upon  three  grounds:  1st. 
Violation  of  the  rights  and  prerogative  of  the  plaintiff  as  King  of  Hun- 
gary, by  the  promotion  of  revolution  and  disorder,  and  otherwise.  2d. 
Injury  to  the  State  of  Hungary,  by  the  introduction  of  a  spurious  cir- 
culation into  that  kingdom.  And  8d.  Injury  to  the  subjects  of  the 
plaintiff,  by  the  same  cause.  The  charges  of  the  bill  in  these  respects 
are  that  the  defendant  Kossuth  intends  to  use  the  notes  in  question 
in  violation  of  the  rights  and  prerogative  of  the  plaintiff  as  King  of 
Hungary,  and,  amongst  other  purposes,  for  the  promotion  of  revolu- 
tion and  disorder  there,  and  that  the  introduction  of  the  notes  into 
Hungary  will  create  a  spurious  circulation  in  that  country,  and  by 
that  and  other  means  cause  great  detriment  to  the  State  and  to  the 
subjects  of  the  plaintiff. 

That  this  court  has  no  jurisdiction  to  interfere  upon  the  ground 
that  the  notes  in  question  are  intended  to  be  used  for  the  purpose  of 
promoting  revolution  and  disorder  in  the  kingdom  of  Hungary  was 
freely  conceded  at  the  bar  by  the  plaintiff's  counsel,  and  can  admit  of 

'  The  admirable  decision  of  Sir  John  Stuart  as  reported  below  in  2  GiflF.  628, 
is  important  from  the  standpoint  of  international  law,  for  the  learned  Vice- 
Chanoellor  declared  the  law  of  nations  to  be  part  of  the  law  of  England. 
The  argument  of  Sir  Hugh  Cairns  (pp.  665-675)  is  a  storehouse  of  intelligence 
and  learning. 

i*  The  opinions  of  Lord  Chancellor  Campbell  and  Lord  Justice  Knight 
Hjuce  have  been  omitted. 

In  following  with  reluctance  the  judgment  of  Turner  in  Pj/rkc  v.  Wadding- 
hfim    (18.')2)   10  Hare  \,  Lord  Ronilly,  M.  R.,  said: 

"1  must  say,  with  the  greatest  possible  respect  and  admiration  for  the  legal 
abilities  ot  my  late  lamented  friend,  Lord  .Justice  Turner,  no  man  was  more 
confirlent  of  his  own  opinion,  and  no  man  thought  it  less  likely  that  a  man  of 
sense  would  differ  from  him.  If  he  had  decided  it  the  other  way,  I  am  satis- 
fied he  would  have  believed  any  reasnn!il)lc  man  would  also  have  decided  it^ 
the  same  way."  Mullings  v.  Trindcr  (1870)   L.  R.  10  Eq.  449,  456. 


CHAP.  IV.]     EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH    175 

no  doubt.  This  view  of  the  caSe,  therefore,  may  be  laid  out  of  con- 
sideration. It  was  urged,  however,  on  the  part  of  the  defendants,  that 
the  prevention  of  revolutionary  designs  was  the  main  if  not  the  sole 
object  of  this  bill,  and  that  the  court  ought,  upon  that  ground,  to  have 
refused  its  interference,  but  we  can  know  nothing  of  what  is  passing 
or  may  be  intended  in  Hungary,  except  what  is  judicially  before  us: 
and  if  the  bill  states  other  grounds  affording  title  to  relief,  we  are 
bound,  as  I  apprehend,  to  pay  attention  to  those  grounds. 

This  brings  us  to  the  question,  whether  the  infringement  of  the  pre- 
rogative rights  of  a  foreign  sovereign  constitutes  a  ground  of  suit  in 
this  court.  The  case  was  very  much  argued  upon  this  point.  It  was 
urged  for  the  plaintiff  that  the  right  of  coining  money,  the  jus  cudendcB 
monetce,  was  universally  acknowledged  to  be  a  prerogative  of  sover- 
eigns, vested  in  them  for  the  benefit  of  their  subjects;  that  this  pre- 
rogative right  extended  no  less  to  the  creation  of  paper  money  than 
to  the  stamping  of  coin;  that  it  was  acknowledged  by  all  nations  and 
recognized  by  international  law;  and  that,  international  law  being 
part  of  the  law  of  England,  this  court  would  interfere  in  favor  of  the 
rights  recognized  hy  and  founded  upon  it.  That  the  right  of  coining 
money  is  the  prerogative  of  a  sovereign  is  laid  down  by  all  the  writers 
on  international  law,  and  I  see  no  reason  to  doubt  that  the  preroga- 
tive right  reaches  the  issue  of  paper  money.  Burlamaqui,  Vol.  3,  p.  241, 
indeed,  mentions  and  treats  of  it  as  so  extending.  To  this  extent,  there- 
fore, I  agree  with  the  argument  on  the  part  of  the  plaintiff,  but  the 
argument  failed  to  satisfy  my  mind  that  this  court  can  or  ought  to  in- 
terfere in  aid  of  the  prerogatives  of  a  foreign  sovereign.  The  preroga- 
tive rights  of  sovereigns  seem  to  me,  as  at  present  advised,  to  stand 
very  much  upon  the  same  footing  as  acts  of  State  and  matters  of  that 
description,  with  which  the  municipal  courts  of  this  country  do  not 
and  cannot  interfere.  Such  acts  and  matters  are  recognized  by  inter- 
national law  no  less  than  the  prerogative  rights  of  sovereigns ;  but 
the  municipal  courts  of  this  country  have  disclaimed  all  right  to  inter- 
fere with  respect  to  them.  If  the  subject  of  one  State  infringes  the 
prerogative  of  the  sovereign  of  another  State,  the  remedy,  as  I  appre- 
hend, lies  in  an  appeal  by  the  offended  sovereign  to  the  sovereign  of 
the  State  to  which  the  offender  belongs,  and  if  redress  be  unjustly 
refused,  the  refusal  may,  as  I  apprehend,  even  be  made  the  ground  of 
war.  This,  I  think,  may  be  gathered  from  Vattel,  and  it  seems  to  me 
important  to  be  adhered  to ;  for  the  prerogative  of  peace  and  war  be- 
longs to  the  sovereign  of  every  State,  and  it  can  hardly  be  denied  that 
the  interference  of  the  municipal  courts  in  such  matters  may  tend  very 
much  to  embarrass  if  not  to  fetter  the  free  exercise  of  these  latter  pre- 
rogatives. The  same  reasoning  which  applies  to  the  prerogative  rights 
of  sovereigns  seems  to  me  to  apply  also  to  the  political  rights  of  nations; 
and  so  far,  therefore,  as  this  bill  is  founded  upon  the  prerogative 
rights  of  the  plaintiff,  or  upon  the  political  rights  of  his  subjects,  my 


176    EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH     [part  i. 

present  opinion,  speaking  with  all  respect  of  what  fell  from  the  Viee- 
Chancellor  in  the  course  of  his  judgment,  is  against  the  decree  which 
he  has  made. 

The  conclusion  to  which  I  have  come  in  this  case  does  not,  how- 
ever, depend  upon  these  points;  and  I  do  not  think  it  necessary,  there- 
fore, to  enter  more  fully  into  them,  or  into  the  arguments  bearing  upon 
them;  nor  do  I  wish  to  be  understood  as  giving  any  final  opinion  upon 
them.  This  case,  as  it  seems  to  me,  may  and  ought  to  be  decided  upon 
the  third  ground  on  which  the  case  is  rested  by  the  bill, — the  injury 
to  the  subjects  of  the  plaintiff  by  the  introduction  of  a  spurious  circula- 
tion. I  take  it  to  be  now  well  settled,  although  upon  looking  into  the 
authorities  I  have  been  surprised  to  find  that  the  point  was  doubted  even 
in  the  time  of  Lord  Loughborough,  3  Ves.  431,  that  a  foreign  sovereign 
may  sue  in  the  courts  of  this  country,  and  that  he  may  sue  in  this 
court  on  the  behalf  of  his  subjects;  and  this  bill,  if  it  does  not  require, 
certainly  admits  the  construction,  that  it  is  filed  by  the  plaintiff  in 
his  representative  character  on  behalf  of  the  subjects  of  his  kingdom, 
for  it  distinctly  alleges  a  case  of  injury  to  them.  We  must  consider, 
then,  what  is  the  nature  of  this  injury.  I  think  it  is  an  injury  not 
to  the  political  but  to  the  private  rights  of  the  plaintiff's  subjects. 
What  is  proposed  to  be  done  is  to  introduce  into  the  kingdom  of 
Hungary  an  enormous  number  of  notes  which,  on  the  face '  of  them, 
purport  that  they  will  be  received  in  the  public  ofiices  of  the  State 
and  that  they  are  guaranteed  by  the  State,  and  which  purport  also  to 
be  signed  in  the  name  of  the  nation  by  the  defendant,  Louis  Kossuth. 
That  the  effect  of  this  introduction  will  be  to  disturb  the  circulation 
of  the  kingdom  cannot,  in  my  opinion,  be  doubted;  and  what  will 
be  the  effect  of  that  disturbance?  Surely  to  endanger,  to  prejudice,  and 
to  deteriorate  the  value  of  the  existing  circulating  medium,  and  thus 
to  affect  directly  all  the  holders  of  Austrian  banknotes,  and  in- 
directly, if  not  directly,  all  the  holders  of  property  in  the  State.  The 
same  great  authority  to  which  I  have  referred  has  very  clearly  pointed 
out  these  consequences,  Vattel,  Booh  1,  r.  10.  But  it  is  said  that  the 
acts  proposed  to  be  done  are  not  the  subject  of  equitable  jurisdiction,  or 
that,  if  Ihey  are,  the  jurisdiction  ought  not  to  be  exercised  until  a 
trial  at  law  shall  have  been  had.  To  neither  of  these  propositions  can 
I  give  my  assent.  1  agree  that  the  jurisdiction  of  this  court  in  a  case 
of  this  nature  rests  upon  injury  to  property,  actual  or  prospective, 
and  that  this  court  has  no  jurisdiction  to  prevent  the  commission  of 
acts  which  are  merely  criminal  or  merely  illegal,  and  do  not  affect 
any  rights  of  property,  but  T  think  there  are  here  rights  of  property 
quite  sufficient  to  found  jurisdiction  in  this  court.  T  do  not  agree 
to  the  proposition,  that  there  is  no  remedy  in  this  court  if  there  be  no 
remedy  at  law,  and  still  less  do  T  agree  to  the  proposition  that  this 
court  is  bound  to  send  a  matter  of  tliis  description  to  be  tried  at  law. 
The  highest  authority  upon  the  jurisdiction  of  this  court,  Lord  Redes- 


CHAP.  IV.]     EMPEROR  OF  AUSTRIA  v.  DAY  AND  KOSSUTH    177 

DALE,  in  his  Treatise  on  Pleading,  in  enumerating  the  cases  to  which 
the  jurisdiction  of  the  court  extends,  mentions  cases  of  this  class: 
*'  Where  the  principles  of  law  by  which  the  ordinary  courts  are  guided 
give  no  right,  but,  upon  the  principles  of  universal  justice,  the  inter- 
ference of  the  judicial  power  is  necessary  to  prevent  a  wrong,  and 
the  positive  law  is  silent."  It  is  plain,  therefore,  that,  in  the  opinion 
of  Lord  Redesdale,  who  was  pre-eminently  distinguished  for  his  knowl- 
edge of  the  principles  of  this  court,  the  jurisdiction  of  the  court  is 
not  limited  to  cases  in  which  there  is  a  right  at  law.  There  is,  indeed, 
a  familiar  instance  in  which  the  jurisdiction  is  not  so  limited, — the 
cases  of  waste.  In  some  cases  of  waste  there  was  no  right  and  no 
remedy  at  law,  but  this  court  did  not  on  that  ground  refuse  its  inter- 
ference. I  do  not  refer  to  the  case  of  equitable  waste,  which,  how- 
ever, is  another  instance,  but  to  the  cases  in  which  there  was  an  inter- 
vening legal  estate.  To  say  that  the  jurisdiction  of  this  court  is  limited 
only  by  the  principles  of  universal  justice  would  no  doubt  be  going 
too  far,  and  I  must  not  be  understood  so  to  construe  what  Lord  Redes- 
dale  has  said.  I  take  the  passage  to  refer  to  cases  in  which  there  is 
what  the  law  in  principle  acknowledges  to  be  a  wrong,  but  as  to  which 
it  gives  no  remedy,  as  in  the  case  of  waste  to  which  I  have  referred. 
The  case  before  us  may,  I  think,  well  be  tried  by  this  rule.  If  the 
property  of  an  individual  is  affected  by  an  undue  and  unauthorized 
use  of  his  name,  the  law  would  no  doubt  give  a  remedy.  I  am  not 
satisfied  that  the  law  would  not  give  the  same  remedy  in  the  case  of 
the  undue  and  unauthorized  use  of  the  name  of  a  nation  or  State; 
but  whether  it  would  do  so  or  not,  and  if  not,  whether  it  would  be 
prevented  from  doing  so  by  the  absence  of  positive  law  or  by  mere 
formal  impediments  as  to  the  right  to  sue,  I  think  the  authority  to 
which  I  have  referred,  and  the  instance  which  I  have  mentioned  of 
the  application  of  it,  warrant  me  in  saying  that  the  case  falls  within 
the  jurisdiction  of  this  court.  It  was  said,  on  the  part  of  the  defend- 
ants, that  the  court  has  only  interfered  in  cases  of  this  nature  where 
there  was  a  right 'at  law,  or  where  there  was  trust  or  confidence;  but 
if  the  jurisdiction  exists,  the  extent  of  it  cannot  be  limited  by  the  in- 
stances in  which  it  has  been  applied.  It  was  also  attempfed  to  be 
argued  on  the  part  of  the  defendants,  that,  assuming  the  existence  of 
the  jurisdiction,  there  was  no  sufficient  case  for  the  exercise  of  it. 
But  upon  this  point  I  have  felt  no  doubt.  The  jurisdiction  of  this 
court  is  preventive  as  well  as  remedial,  and  the  afiidavit  of  the  defend- 
ant Kossuth  himself  quite  satisfies  my  mind  that  there  is  a  proper  case 
for  the  exercise  of  it.  Subject,  therefore,  to  the  qualification  to  which 
the  Lord  Chancellor  has  adverted,  I  think  that  this  decree  must  stand.* 

^  "The  governments  of  Europe,  acting  through  the  monarch  or  the  legislature, 
according  to  the  distribution  of  powers  under  their  respective  constitutions, 
had  and  have  as  sovereign  a  power  of  issuing  paper  money  as  of  stamping  coin. 
This    power    has    been    distinctly    recognized    in    an    important    modern    case. 


178      EOBEKSON  v.  KOCHESTER  FOLDING  COX  CO.      [part  u 

ROBERSON  V.  ROCHESTER  FOLDING  BOX  CO. 
In  the  Court  of  Appeals  of  New  York,  1902. 

[171  New  York  538.] 

Parker,  Ch.  J.'  The  complaint  alleges  that  the  Franklin  Mills 
Co.,  one  of  the  defendants,  was  engaged  in  a  general  milling  busi- 
ness and  in  the  manufacture  and  sale  of  flour;  that  before  the  com- 
mencement of  the  action,  without  the  knowledge  or  consent  of  plain- 
tiff, defendants,  knowing  that  they  had  no  right  or  authority  so  to  do, 
had  obtained,  made,  printed,  sold  and  circulated  about  25,000  litho- 
graphic prints,  photographs  and  likenesses  of  plaintiff,  made  in  a  man- 
ner particularly  set  up  in  the  complaint;  that  upon  the  paper  upon 
which  the  likenesses  were  printed  and  above  the  portrait  there 
were  printed,  in  large,  plain  letters,  the  words,  "  Flour  of  the 
Family,"  and  below  the  portrait  in  large  capital  letters,  "  Franklin 
Mills  Flour,"  and  in  the  lower  right-hand  corner  in  smaller  capital  let- 
ters, "  Rochester  Folding  Box  Co.,  Rochester,  N.  Y. ;"  that  upon  the 
same  sheet  were  other  advertisements  of  the  flour  of  the  Franklin  Mills 
Co. ;  that  those  25,000  likenesses  of  the  plaintiff  thus  ornamented  have 
been  conspicuously  posted  and  displayed  in  stores,  warehouses,  saloons 
and  other  public  places;  that  they  have  been  recognized  by  friends  of 
the  plaintiff  and  other  people  with  the  result  that  plaintiff  has  been 
greatly  humiliated  by  the  scoffs  and  jeers  of  persons  who  have  recog- 
nized her  face  and  picture  on  this  advertisement  and  her  good  name  has 
been  attacked,  causing  her  great  distress  and  suffering  both  in  body  and 
mind;  that  she  was  made  sick  and  suffered  a  severe  nervous  shock,  was 
confined  to  her  bed  and  compelled  to  employ  a  physician,  because  of 
these  facts ;  that  defendants  had  continued  to  print,  make,  use,  sell  and 
circulate  the  said  lithographs,  and  that  by  reason  of  the  foregoing 
facts  plaintiff  had  suffered  damages  in  the  sum  of  $15,000.  The  com- 
plaint prays  that  defendants  be  enjoined  from  making,  printing,  pub- 
lishing, circulating  or  using  in  any  manner  any  likenesses  of  plaintiff  in 
any  form  whatever,  for  further  relief  (which  it  is  not  necessary  to  con- 
sider here)  and  for  damages. 

It  will  be  observed  that  there  is  no  complaint  made  that  plaintiff  was 

ably  argued  and  fully  considered,  in  which  the  Emperor  of  Austria  as  King 
of  Hungary,  obtained  from  the  English  Court  of  Chancery  an  injunction 
against  the  issue  in  Enghind,  withoiit  his  license,  of  notes  purporting  to  be 
pulilic  paper  money  of  TTvnigary.  Austria  v.  Day,  2  (liff.  f)28,  and  .'i  D.  F.  &  J. 
217."    I'rr  dray,  J.  in  Julliard  v.   Clrcenman    (1884)    110   U.  S.  421,  447-448. 

'The  opening  paragraphs   of  the  opinion   are  omitted. 

T)ie  student  wil!  doubtless  recall  the  fact  that  the  learned  chief  jiidge  of 
llic  Coiiri  of  Ajjpcals  was,  in  1904,  the  Democratic  candidate  for  the  Presidency 
(jf  the  United  States. 


CHAP.  IV.]     ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.     179 

libeled  by  this  publication  of  her  portrait.  The  likeness  is  said  to  be 
a  very  good  one,  and  one  that  her  friends  and  acquaintances  were  able 
to  recognize;  indeed,  her  grievance  is  that  a  good  portrait  of  her,  and, 
therefore,  one  easily  recognized,  has  been  used  to  attract  attention 
toward  the  paper  upon  which  defendant  mill  company's  advertisements 
appear.  Such  publicity,  which  some  find  agreeable,  is  to  plaintifiF  very 
distasteful,  and  thus,  because  of  defendants'  impertinence  in  using 
her  picture  without  her  consent  for  their  own  business  purposes,  she  has 
been  caused  to  suffer  mental  distress  where  others  would  have  ai)i)re- 
ciated  the  compliment  to  their  beauty  implied  in  the  selection  of  the 
picture  for  such  purposes;  but  as  it  is  distasteful  to  her,  she  seeks  the 
aid  of  the  courts  to  enjoin  a  further  circulation  of  the  lithographic 
prints  containing  her  portrait  made  as  alleged  in  the  complaint,  and  as 
an  incident  thereto,  to  reimburse  her  for  the  damages  to  her  feelings, 
which  the  complaint  fixes  at  the  sum  of  $15,000. 

There  is  no  precedent  for  such  an  action  to  be  found  in  the  decisions 
of  this  court;  indeed  the  learned  judge  who  wrote  the  very  able  and 
interesting  opinion  in  the  Appellate  Division  said,  while  upon  the 
threshold  of  the  discussion  of  the  question :  "  It  may  be  said  in  the  first 
place  that  the  theory  upon  which  this  action  is  predicated  is  new,  at 
least  in  instance  if  not  in  principle,  and  that  few  precedents  can  be 
found  to  sustain  the  claim  made  by  the  plaintiff,  if  indeed  it  can  be 
said  that  there  are  any  authoritative  cases  establishing  her  right  to 
recover  in  this  action."  Nevertheless,  that  court  reached  the  conclusion 
that  plaintiff  had  a  good  cause  of  action  against  defendants,  in  that 
defendants  had  invaded  what  is  called  a  "  right  of  privacy  "—in  other 
w'ords,  the  right  to  be  let  alone.  Mention  of  such  a  right  is  not  to  be 
found  in  Blackstone,  Kent  or  any  other  of  the  great  commentators  upon 
the  law,  nor  so  far  as  the  learning  of  counsel  of  the  courts  in  this  case 
have  been  able  to  discover,  does  its  existence  seem  to  have  been  asserted 
prior  to  about  the  year  1890,  when  it  was  presented  with  attractiveness 
and  no  inconsiderable  ability  in  the  Harvard  Law  Review  (Vol.  IV, 
page  193)  in  an  article  entitled,  "  The  Right  of  Privacy." 

The  so-called  right  of  privacy  is,  as  the  phrase  suggests,  founded  upon 
the  claim  that  a  man  has  the  right  to  pass  through  this  world,  if  he  wills, 
w-ithout  having  his  picture  published,  his  business  enterprises  discussed, 
his  successful  experiments  written  up  for  the  benefit  of  others,  or  his 
eccentricities  commented  upon  either  in  handbills,  circulars,  catalogues, 
periodicals  or  newspapers,  and,  necessarily,  that  the  things  which  may 
not  be  written  and  published  of  him  must  not  be  spoken  of  him  by  his 
neighbors,  whether  the  comment  be  favorable  or  otherwise.  While  most 
persons  would  much  prefer  to  have  a  good  likeness  of  themselves  appear 
in  a  responsible  periodical  or  leading  newspaper  rather  than  upon  an 
advertising  card  or  sheet,  the  doctrine  which  the  courts  are  asked  to 
create  for  this  case  would  apply  as  well  to  the  one  publication  as  to  the 
other,  for  the  principle  which  a  court  of  equity  is  asked  to  assert  in 


180      EOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.      [part  i. 

support  of  a  recovery  in  this  action  is  that  the  right  of  privacy  exists 
and  is  enforceable  in  equity,  and  that  the  publication  of  that  which 
purports  to  be  a  portrait  of  another  person,  even  if  obtained  upon  the 
street  by  an  impertinent  individual  with  a  camera,  will  be  restrained  in 
equity  on  the  ground  that  an  individual  has  the  right  to  prevent  his 
features  from  becoming  known  to  those  outside  of  his  circle  of  friends 
and  acquaintances. 

If  such  a  principle  be  incorporated  into  the  body  of  the  law  through 
the  instrumentality  of  a  court  of  equity,  the  attempts  to  logically  apply 
the  principle  will  necessarily  result,  not  only  in  a  vast  amount  of  litiga- 
tion, but  in  litigation  bordering  upon  the  absurd,  for  the  right  of  pri- 
vacy, once  established  as  a  legal  doctrine,  cannot  be  confined  to  the 
restraint  of  the  publication  of  a  likeness  but  must  necessarily  embrace 
as  well  the  publication  of  a  word-picture,  a  comment  upon  one's  looks, 
conduct,  domestic  relations  or  habits.  And  were  the  right  of  privacy 
once  legally  asserted  it  would  necessarily  be  held  to  include  the  same 
things  if  spoken  instead  of  printed,  for  one,  as  well  as  the  other,  invades 
the  right  to  be  absolutely  let  alone.  An  insult  would  certainly  be  in 
violation  of  such  a  right  and  with  many  persons  would  more  seriously 
wound  the  feelings  than  would  the  publication  of  their  picture.  And  so 
we  might  add  to  the  list  of  things  that  are  spoken  and  done  day  by  day 
which  seriously  offend  the  sensibilities  of  good  people  to  which  the 
principle  which  the  plaintiff  seeks  to  have  imbedded  in  the  doctrine  of 
the  law  would  seem  to  apply.  I  have  gone  only  far  enough  to  barely 
suggest  the  vast  field  of  litigation  which  would  necessarily  be  opened  up 
should  this  court  hold  that  privacy  exists  as  a  legal  right  enforceable  in 
equity  by  injunction,  and  by  damages  where  they  seem  necessary  to  give 
complete  relief. 

The  legislative  body  could  very  well  interfere  and  arbitrarily  provide 
that  no  one  should  be  permitted  for  his  own  selfish  purpose  to  use  the 
picture  or  the  name  of  another  for  advertising  purposes  without  his  con- 
sent. In  such  event  no  embarrassment  would  result  to  the  general  body 
of  the  law,  for  the  rule  would  be  applicable  only  to  cases  provided  for  by 
the  statute.  The  courts,  however,  being  without  authority  to  legislate, 
are  required  to  decide  cases  upon  principle,  and  so  are  necessarily  em- 
barrassed by  precedents  created  by  an  extreme,  and,  therefore,  unjusti- 
fiable application  of  an  old  principle. 

The  court  below  properly  said  that  "  while  it  may  be  true  that  the  fact 
that  no  precedent  can  be  found  to  sustain  an  action  in  any  given  case, 
is  cogent  evidence  that  a  principle  does  not  exist  upon  which  the  right 
may  be  based,  it  is  not  the  rule  that  the  want  of  a  precedent  is  a  suffi- 
cient reason  for  turning  the  plaintiff  out  of  court,"  provided — I  think 
should  be  added — there  can  be  found  a  clear  and  unequivocal  principle 
of  the  common  law  which  either  directly  or  mediately  governs  it  or 
which  by  analogy  or  parity  of  reasoning  ought  to  govern  it. 

It  is  undoubtedly  true  that  in  the  early  days  of  chancery  jurisdiction 


CHAP.  IV.]     EOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.    181 

in  England  the  chancellors  were  accustomed  to  deliver  their  judgments 
without  regard  to  principles  or  precedents  and  in  that  way  the  process 
of  building  up  the  system  of  equity  went  on,  the  chancellor  disregarding 
absolutely  many  established  principles  of  the  common  law.  "  In  no  other 
way,"  says  Ponieroy,  "  could  the  system  of  equity  jurisprudence  have 
been  commenced  and  continued  so  as  to  arrive  at  its  present  propor- 
tions." (Pomeroy's  Eq.  Jur.  §  48.)  In  their  work  the  chancellors  were 
guided  not  only  by  what  they  regarded  as  the  eternal  principles  of  abso- 
lute right,  but  also  by  their  individual  consciences,  but  after  a  time  when 
"  the  period  of  infancy  was  passed  and  an  orderly  system  of  equitable 
principles,  doctrines  and  rules  began  to  be  developed  out  of  the  in- 
creasing mass  of  precedents,  this  theory  of  a  personal  conscience  was 
abandoned ;  and  ^  the  conscience,'  which  is  an  element  of  the  equitable 
jurisdiction,  came  to  be  regarded,  and  has  so  continued  to  the  present 
day,  as  a  metaphorical  term,  designating  the  common  standard  of  civil 
right  and  expediency  combined,  based  upon  general  principles  and  lim- 
ited by  established  doctrines  to  which  the  court  appeals,  and  by  which 
it  tests  the  conduct  and  rights  of  suitors — a  juridical  and  not  a  personal 
conscience."     (Pomeroy's  Eq.  Jur.  §  57.) 

The  importance  of  observing  the  spirit  of  this  rule  cannot  be  over- 
estimated, for,  while  justice  in  a  given  case  may  be  worked  out  by  a 
decision  of  the  court  according  to  the  notions  of  right  which  govern  the 
individual  judge  or  body  of  judges  comprising  the  court,  the  mischief 
which  will  finally  result  may  be  almost  incalculable  under  our  system 
which  makes  a  decision  in  one  case  a  precedent  for  decisions  in  all 
future  cases  which  are  akin  to  it  in  the  essential  facts. 

So  in  a  case  like  the  one  before  us,  which  is  concededly  new  to  this 
court,  it  is  important  that  the  court  should  have  in  mind  the  effect  upon 
future  litigation  and  upon  the  development  of  the  law  which  would 
necessarily  result  from  a  step  so  far  outside  of  the  beaten  paths  of  both 
common  law  and  equity,  assuming — what  I  shall  attempt  to  show  in  a 
moment — that  the  right  of  privacy  as  a  legal  doctrine  enforceable  in 
equity  has  not,  down  to  this  time,  been  established  by  decisions. 

The  history  of  the  phrase  ''  right  of  privacy  "  in  this  country  seems  to 
have  begun  in  1890  in  a  clever  article  in  the  Harvard  Law  Review — • 
already  referred  to — in  which  a  number  of  English  cases  were  analyzed, 
and,  reasoning  by  analogy,  the  conclusion  was  reached  that — notwith- 
standing the  unanimity  of  the  courts  in  resting  their  decisions  upon 
property  rights  in  cases  where  publication  is  prevented  by  injunction — 
in  reality  such  prevention  was  due  to  the  necessity  of  affording  protec- 
tion to  thoughts  and  sentiments  expressed  through  the  medium  of 
writing,  printing  and  the  arts,  which  is  like  the  right  not  to  be  assaulted 
or  beaten;  in  other  words,  that  the  principle,  actually  involved  though 
not  always  appreciated,  was  that  of  an  inviolate  personality,  not  that  of 
private  property. 

This   article  brought   forth  a   reply   from  the   Northwestern   Review 


182      EOBERSON  v.  KOCIIESTER  FOLDING  BOX  CO.      [part  i. 

(Vol.  Ill,  page  1)  urging  that  equity  has  no  concern  with  the  feelings 
of  an  individual  or  with  considerations  of  moral  fitness,  except  as  the 
inconvenience  or  discomfort  which  the  person  may  suffer  is  connected 
with  the  possession  or  enjoyment  of  property,  and  that  the  English 
authorities  cited  are  consistent  with  such  view.  Those  authorities  are 
now  to  be  examined  in  order  that  we  may  see  whether  they  were  in- 
tended to  and  did  mark  a  departure  from  the  established  rule  which  had 
been  enforced  for  generations ;  or,  on  the  other  hand,  are  entirely  con- 
sistent with  it. 

The  first  case  is  Prince  Albert  v.  Strange  (1  Macn.  &  G.  25;  2  De  G. 
&  S.  652).  The  queen  and  the  prince,  having  made  etchings  and  draw- 
ings for  their  own  amusement,  decided  to  have  copies  struck  off  from  the 
etched  plates  for  presentation  to  friends  and  for  their  own  use.  The 
workman  employed,  however,  printed  some  copies  on  his  own  account, 
which  afterwards  came  into  the  hands  of  Strange,  who  purposed  ex- 
hibiting them,  and  published  a  descriptive  catalogue.  Prince  Albert 
applied  for  an  injunction  as  to  both  exhibition  and  catalogue,  and  the 
vice-chancellor  granted  it,  restraining  defendant  from  publishing  "  at 
least  by  printing  or  writing,  though  not  hy  copy  or  resemblance,"  a  de- 
scription of  the  etchings.  An  examination  of  the  opinion  of  the 
vice-chancellor  discloses  that  he  found  two  reasons  for  granting  the  in- 
junction, namely,  that  the  property  rights  of  Prince  Albert  had  been 
infringed,  and  that  there  was  a  breach  of  trust  by  the  workman  in  re- 
taining some  impressions  for  himself.  The  opinion  contained  no  hint 
whatever  of  a  right  of  privacy  separate  and  distinct  from  the  right  of 
property. 

Pollard  V.  Photographic  Co.  (L.  R.  40  Ch.  Div.  345)  is  certainly 
not  an  authority  for  granting  an  injunction  on  the  ground  of  threatened 
injury  to  the  feelings,  although  it  is  true,  as  stated  in  the  opinion  of  the 
Appellate  Division,  that  the  court  did  say  in  the  course  of  the  discussion 
that  the  right  to  grant  an  injunction  does  not  depend  upon  the  existence 
of  property ;  but  the  decision  was,  in  fact,  placed  upon  the  ground  that 
there  was  a  breach  of  an  implied  contract.  The  facts,  briefly  stated, 
were  that  a  photographer  had  been  applied  to  by  a  woman  to  take  her 
photograph,  she  ordering  a  certain  number  of  copies,  as  is  usual  in  such 
cases.  The  photographer  made  copies  for  himself  and  undertook  to  ex- 
hibit them,  and  also  sold  copies  to  a  stationer,  who  used  them  as  Christ- 
mas cards.  Their  action  was  restrained  by  the  court  on  the  ground 
that  there  was  an  implied  contract  not  to  use  the  negative  for  any  other 
purpose  than  to  supply  the  sitter  with  copies  of  it  for  a  price.  During 
the  argument  of  plaintiff's  counsel,  the  court  asked  this  question :  "  Do 
you  dispute  that  if  the  negative  likeness  were  taken  on  the  sly,  the  per- 
son who  took  it  might  exhibit  copies?"  Counsel  replied:  "In  that  case 
th(!re  would  be  no  consideration  to  support  a  contract." 

In  Qee  v.  Pritchard  (2  Swanst.  402)  B  attempted  to  print  a  private 
letter  written  him  by  A,  and  he  was  restrained  on  the  ground  that  the 


CHAP.  IV.]     ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.      183 

property  of  that  private  letter  remained  in  A,  B  having  it  only  for  the 
qualified  purpose  for  which  it  was  sent  to  him,  the  basis  of  the  decision, 
therefore,  heing  the  idea  of  plaintiff's  property  in  the  thing  published, 
as  being  the  product  of  his  mind,  written  by  him  and  put  into  the  hands 
of  B  for  a  limited  purpose  only. 

The  same  judge,  Lord  Eldon,  also  granted  the  injunction  in  Aber- 
nathy  v.  Hutchinson  (3  L.  J.  Ch.  209)  restraining  the  publication  in 
the  "  Lancet "  of  lectures  delivered  at  a  hospital  by  the  plaintiflF.  The 
court  expressed  a  doubt  in  that  case  whether  there  could  be  property  in 
lectures  which  had  not  been  reduced  to  writing,  but  granted  the  injunc- 
tion on  the  ground  that  it  was  a  breach  of  confidence  on  the  part  of  a 
pupil  who  was  admitted  to  hear  the  lectures  to  publish  them,  inasmuch 
as  they  were  delivered  for  the  information  of  the  pupils  and  not  for 
sale  and  profit  by  them. 

Mayhall  v.  Higbey  (1  H.  &  C.  188)  was  also  a  case  where  an  injunc- 
tion was  granted  and  nominal  damages  awarded  on  the  ground  that 
plaintiff  had  a  property  right  in  certain  photographic  negatives  which 
he  had  loaned  to  a  person  who,  subsequently,  became  insolvent  and  whose 
assignee,  without  right,  sold  them  to  defendant  who  printed  copies  from 
Them  which  he  published  and  sold. 

In  Duke  of  Queensberry  v.  Shebbeare  (2  Eden,  329)  the  Earl  of 
Clarendon  delivered  to  one  Gwynne  an  original  manuscript  of  his 
father's,  "  Lord  Clarendon's  History."  Gwynne's  administrator  after- 
wards sold  it  to  Shebbeare,  and  the  court,  upon  the  application  of  the 
personal  representatives  of  Lord  Clarendon,  restrained  its  publication  on 
the  ground  that  they  had  a  property  right  in  the  manuscript  which  it 
was  not  intended  that  Gwynne  should  have  the  benefit  of  by  multiplying 
the  number  of  copies  in  print  for  profit. 

In  not  one  of  these  cases,  therefore,  was  it  the  basis  of  the  decision 
that  the  defendants  could  be  restrained  from  performing  the  act  he  was 
doing  or  threatening  to  do  on  the  ground  that  the  feelings  of  the  plain- 
tiff would  be  thereby  injured;  but,  on  the  contrary,  each  decision  was 
rested  either  upon  the  ground  of  breach  of  trust  or  that  plaintiff  had 
a  property  right  in  the  subject  of  litigation  which  the  court  could 
protect. 

A  more  recent  English  case,  decided  in  1898,  is  more  nearly  in  point 
and  negatives  the  contention  that  plaintiff  may  restrain  an  unauthorized 
publication  which  is  offensive  to  him — namely,  Dochrell  v.  Dougall  (78 
L.  T.  R.  840).  In  that  case  defendant,  the  owner  of  a  medicine  called 
"  Sallyco,"  published  the  following  substantially  true  but  unauthorized 
statement  about  plaintiff:  "Dr.  Morgan  Dockrell,  physician  to  St. 
John's  Hospital,  London,  is  prescribing  Sallyco  as  an  habitual  drink. 
Dr.  Dockrell  says  nothing  has  done  his  gout  so  much  good."  In  the 
course  of  the  opinion  the  court  said,  in  effect,  that  plaintiff  claimed  to  be 
entitled  to  an  injunction  restraining  defendant  from  using  plaintiff's 
name  in  his  advertisements  on  the  ground  that  an  injmiction  should  be 


184      ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.      [part  i. 

granted  in  every  such  case  where  it  can  be  shown  that  the  use  of  the 
plaintiff's  name  is  unauthorized  and  is  calculated  to  injure  him  in  his 
profession,  and  after  saying  that  he  did  not  think  that  this  was  right, 
he  stated  the  proper  rule  to  be  that  "  In  order  that  an  injunction  may 
issue  to  restrain  a  defendant  from  using  a  plaintiff's  name  the  use  of  it 
must  be  such  as  to  injure  the  plaintiff's  reputation  or  property." 

None  of  the  other  English  cases  brought  to  our  attention  are  claimed 
to  have  a  direct  bearing  upon  this  question,  and  it  seems  to  us  very 
clear  that  they  do  not  in  anywise  support  the  position  of  plaintiff. 

The  case  that  seems  to  have  been  more  relied  upon  than  any  other 
by  the  learned  Appellate  Division  in  reaching  the  conclusion  that  the 
complaint  in  this  case  states  a  cause  of  action,  is  Schuyler  v.  Curtis 
(147  N.  Y.  434).  In  that  case  certain  persons  attempted  to  erect  a 
statue  or  bust  of  a  woman  no  longer  living,  and  one  of  her  relatives  com- 
menced an  action  in  equity  to  restrain  such  erection,  alleging  that  his 
feelings  and  the  feelings  of  other  relatives  of  deceased  would  be  injured 
thereby.  At  Special  Term  an  injunction  was  granted  on  that  ground. 
(19  N.  Y.  Supp.  264.)  The  General  Term  affirmed  the  decision.  (64 
Hun,  594.)  This  court  reversed  the  judgment.  Judge  Peckham  writing, 
and  so  far  as  the  decision  is  concerned,  therefore,  it  is  not  authority 
for  the  existence  of  a  right  of  privacy  which  entitles  a  party  to  restrain 
another  from  doing  an  act  which,  though  not  actionable  at  common  law, 
occasions  plaintiff  mental  distress.  In  the  course  of  the  argument,  how- 
ever, expressions  were  used  which  it  is  now  claimed  indicate  that  the 
court  recognized  the  existence  of  such  a  right.  A  sufficient  answer  to 
that  contention  is  to  be  found  in  the  opinion  written  on  the  motion  for 
reargument  in  Colonial  City  Tr.  Co.  v.  Kingston  City  R.  R.  Co.  (154  N. 
Y.  493)  in  which  it  was  said:  "It  was  not  our  intention  to  decide  any 
casie  but  the  one  before  us.  *  *  *  If,  as  sometimes  happens,  broader 
statements  were  made  by  way  of  argument  or  otherwise  than  were  essen- 
tial to  the  decision  of  the  questions  presented,  they  are  the  dicta  of  the 
writer  of  the  opinion  and  not  the  decision  of  the  court.  A  judicial 
opinion,  like  evidence,  is  only  binding  so  far  as  it  is  relevant,  and  when 
it  wanders  from  the  point  at  issue  it  no  longer  has  force  as  an  official 
utterance."  The  question  up  for  decision  in  the  Schuyler  case  was 
whether  the  relatives  could  restrain  the  threatened  action  of  defendants, 
and  not  whether  Mrs.  Schuyler  could  have  restrained  it  had  she  been  liv- 
ing. The  latter  question  not  being  before  the  court  it  was  not  called 
upon  to  decide  it,  and,  as  we  read  the  opinion,  there  is  no  expression  in  it 
which  indicates  an  intention  either  to  decide  it  or  to  seriously  consider 
it,  but  rather,  it  proceeds  upon  the  assumption  that  if  such  a  right  did 
exist  in  Mrs.  Schuyler,  her  relatives  did  not  succeed  to  it  upon  her 
death;  all  of  which  will  sufficiently  appear  from  the  following  extracts 
from   the   opinion : 

"  This  action  is  of  a  nature  somcwhnt  unusual  and  dependent  for 
its  support  upon  the  application  of  certain  principles  which  are  them- 


CHAP.  IV.]     ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.     185 

selves  not  very  clearly  defined  or  their  boundaries  very  well  recognized 
or  plainly  laid  down.  Briefly  described,  the  action  is  founded  upon  the 
alleged  violation  of  what  is  termed  the  right  of  privacy." 

"  It  is  not  necessary,  however,  to  the  view  which  we  take  of  this 
case,  to  lay  down  precise  and  accurate  rules  which  shall  apply  to  all  cases 
touching  upon  this  alleged  right." 

"For  the  purposes  we  have  in  view,  it  is  unnecessary  to  wholly  deny 
the  existence  of  the  right  of  privacy  to  which  the  plaintiff  appeals  as 
the  foundation  of  his  cause  of  action." 

"  While  not  assuming  to  decide  what  this  right  of  privacy  is  in  all 
cases,  we  are  quite  clear  that  such  a  right  would  not  be  violated  by  the 
proposed  action  of  the  defendants." 

There  are  two  other  cases  in  this  state  bearing  upon  this  question: 
.Marks  v.  Jaffa  (26  N.  Y.  Supp.  908),  decided  at  Special  Term,  and 
Murray  v.  Gast  Lithographic  &  Engraving  Co.  (8  Misc.  Rep.  36)  de- 
cided at  an  Equity  Term  of  the  Court  of  Common  Pleas  at  New  York. 
In  the  first  case  the  relief  prayed  for  was  granted  upon  the  authority 
of  the  decision  of  the  General  Term  in  the  Schuyler  case,  which  was  sub- 
sequently reversed  in  this  court.  In  the  Murray  case,  in  a  well-reasoned 
opinion  by  Judge  Bischoff,  it  is  held  that  a  parent  cannot  maintain 
an  action  to  enjoin  an  unauthorized  publication  of  the  portrait  of  an 
infant  child,  and  for  damages  for  injuries  to  his  sensibilities  caused  by 
the  invasion  of  his  child's  privacy,  because  "  the  law  takes  no  cognizance 
of  a  sentimental  injury,  independent  of  a  wrong  to  person  or  property." 
In  the  course  of  his  opinion  he  quotes  from  the  opinion  of  Lumpkix, 
J.,  in  Chapman  v.  West.  U.  T.  Co.  (88  Ga.  763)  as  follows:  "  The  law 
protects  the  person  and  the  purse.  The  person  includes  the  reputation. 
The  body,  reputation  and  property  of  the  citizen  are  not  to  be  invaded 
without  responsibility  in  damages  to  the  sufferer.  But,  outside  these 
protected  spheres,  the  law  does  not  yet  attempt  to  guard  the  peace  of 
mind,  the  feelings  or  the  happiness  of  everyone  by  giving  recovery  of 
damages  for  mental  anguish  produced  by  mere  negligence.  There  is 
no  right,  capable  of  enforcement  by  process  of  law,  to  possess  or  main- 
tain, without  disturbance,  any  particular  condition  of  feeling.  The  law 
leaves  feeling  to  be  helped  and  vindicated  by  the  tremendous  force  of 
sympathy.  The  temperaments  of  individuals  are  various  and  variable, 
and  the  imagination  exerts  a  powerful  and  incalculable  influence  in 
injuries  of  this  kind.  There  are  many  moral  obligations  too  delicate 
and  subtle  to  be  enforced  in  the  rude  way  of  giving  money  compensation 
for  their  violation.  Perhaps  the  feelings  find  as  full  protection  as  it  is 
possible  to  give  in  moral  law  and  a  responsive  public  opinion.  The  civil 
law  is  a  practical  business  system,  dealing  with  what  is  tangible,  and 
does  not  undertake  to  redress  psychological  injuries." 

Outside  of  this  jurisdiction  the  question  seems  to  have  been  presented 
in  two  other  cases  in  this  country:  Corliss  v.  E.  W.  Walker  Co.  (57 
Fed.  Rep.  434;  64  Fed.  Rep.  280)  and  Atkinson  v.  Doherty  (121  Mich. 


186    KOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.       [part  i. 

372).  The  Corliss  case  was  an  action  in  equity  to  restrain  the  pub- 
lication of  the  biography  and  picture  of  Mr.  Corliss.  It  was  based  upon 
an  alleged  invasion  of  the  right  of  privacy.  The  court  denied  the  in- 
junction as  to  the  publication  of  the  biography  but  granted  it  as  to  the 
use  of  certain  plates  from  which  the  defendant  was  to  make  a  picture  of 
Mr.  Corliss,  upon  the  ground  that  they  had  been  obtained  upon  condi- 
tions which  defendant  had  not  complied  with.  In  the  course  of  the  opin- 
ion the  court  said :  ''  Under  our  laws  one  can  speak  and  publish  what  he 
desires,  provided  he  commit  no  offense  against  public  morals  or  private 
reputation.  *  *  *  There  is  another  objection  which  meets  us  at  the 
threshold  of  this  case.  The  subject-matter  of  the  jurisdiction  of  a  court 
of  equity  is  civil  property,  and  injury  to  property,  whether  actual  or 
prospective  is  the  foundation  on  which  its  jurisdiction  rests.  (Re  Saw- 
yer, 124  U.  S.  200,  210;  Kerr.  Inj.  [2d  ed.]  p.  1.)  It  follows  from  this 
principle  that  a  court  of  equity  has  no  power  to  restrain  a  libelous 
publication."  Both  the  opinion  and  the  decision  necessarily  negative  the 
existence  of  an  actionable  right  of  privacy ;  but  subsequently  upon  a 
motion  to  dissolve  the  injunction,  which  was  granted  upon  the  ground 
that  Mr.  Corliss  was  a  public  character,  and  hence  the  publishers  were 
entitled  to  use  his  picture,  the  learned  court  expressed  the  opinion  that 
a  private  individual  has  the  right  to  be  protected  from  the  publication  of 
his  portrait  in  any  form.  Now,  while  this  suggestion  was  obiter,  it 
merits  discussion,  and  an  examination  of  that  which  it  promulgates  as 
doctrine  discloses  what  we  deem  a  fatal  objection  to  the  establishment 
of  a  rule  of  privacy.  The  learned  judge  says :  "  I  believe  the  law  to  be 
that  a  private  individual  has  a  right  to  be  protected  in  the  representa- 
tion of  his  portrait  in  any  form;  that  this  is  a  property  as  well  as  a 
personal  right,  and  that  it  belongs  to  the  same  class  of  rights  which  for- 
bids the  reproduction  of  a  private  manuscript  or  painting,  or  the  publi- 
cation of  private  letters,  or  of  oral  lectures  delivered  by  a  teacher  to  his 
class,  or  the  revelation  of  the  contents  of  a  merchant's  book  by  a  clerk. 
*  *  *  But,  while  the  right  of  a  private  individual  to  prohibit  the 
reproduction  of  his  picture  or  photograph  should  be  recognized  and  en- 
forced, this  right  may  be  surrendered  or  dedicated  to  the  public  by  the 
act  of  the  individual,  just  the  same  as  a  private  manuscript,  book  or 
painting  becomes  (when  not  protected  by  copyright)  public  property  by 
the  act  of  publication.  The  distinction  in  the  case  of  a  picture  or  photo- 
graph lies,  it  seems  to  me,  between  public  and  private  characters.  A  pri- 
vate individual  should  be  protected  against  the  publication  of  any 
portrait  of  himself,  but  where  an  individual  becomes  a  public  character 
the  case  is  different.  A  statesman,  author,  artist  or  inventor,  who  asks 
for  and  desires  public  recognition,  may  be  said  to  liave  surrendered 
his  right  to  the  public."  This  distinction  between  public  and  private 
characters  cannot  possibly  be  drawn.  On  what  principle  does  an  author 
or  artist  forfeit  his  right  of  privacy  and  a  great  orator,  a  great  preacher, 
or  a  great  advocate  retain  his?     Who  can  draw  a  line  of  demarcation 


CHAP.  IV.]     ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.    187 

between  publie  characters  and  private  characters,  let  that  line  be  as 
wavering  and  irregular  as  you  please?  In  the  very  case  then  before  the 
judge,  what  had  Mr.  Corliss  done  by  which  he  surrendered  his  right  of 
privacy?  In  what  respect  did  he  by  his  inventions  "ask  for  and  desire 
public  recognition  "  any  more  than  a  banker  or  merchant  who  prosecutes 
his  calling?  Or  is  the  right  of  privacy  the  possession  of  mediocrity 
alone,  which  a  person  forfeits  by  giving  rein  to  his  ability,  spurs  to  his 
industry  or  grandeur  to  his  character?  A  lady  may  pass  her  life  in 
domestic  privacy  when,  by  some  act  of  heroism  or  self-sacrifice,  her  name 
and  fame  fill  the  public  ear.  Is  she  to  forfeit  by  her  good  deed  the  right 
of  privacy  she  previously  possessed?  These  considerations  suggest  the 
answer  we  would  make  to  the  position  of  the  learned  judge  and  at  the 
same  time  serve  to  make  more  clear  what  we  have  elsewhere  attempted 
to  point  out,  namely,  the  absolute  impossibility  of  dealing  with  this  sub- 
ject save  by  legislative  enactment,  by  which  may  be  drawn  arbitrary 
distinctions  which  no  court  should  promulgate  as  a  part  of  general 
jurisprudence. 

Atkinson  v.  Doherty  was  a  suit  in  equity  brought  by  the  widow  of 
Colonel  John  Atkinson,  a  well-known  lawyer  in  Detroit,  to  enjoin  the 
defendant,  a  cigar  manufacturer,  from  using  the  name  and  portrait  of 
Colonel  Atkinson  upon  boxes  of  cigars  manufactured  by  defendant.  The 
suit  was  dismissed  by  the  Circuit  Court,  and  its  decree  was  unanimously 
affirmed  by  the  Supreme  Court.  The  case  quite  closely  resembles  the 
Schuyler  case,  which  was  brought  to  the  attention  of  that  court,  and  in 
the  course  of  the  opinion  the  contention  that  the  Schuyler  case  intimated 
the  existence  of  a  right  of  privacy  was  met  as  follows:  "We  think  it 
should  not  be  considered  as  containing  a  dictum  even  in  support  of  the 
doctrine  contended  for."  The  method  adopted  by  the  court  in  the  Atkin- 
son case  in  treating  the  question  was  different  from  that  employed  by 
this  court  in  the  Schuyler  case,  however,  for  the  opinion  proceeds  to  a 
review  of  the  authorities  upon  which  the  right  of  privacy  is  said  to 
rest,  reaching  the  conclusion  that  all  of  the  authorities  which  are  en- 
titled to  respect  are  based  upon  property  or  contract  rights,  and  hence 
"  that  Colonel  Atkinson  would  himself  be  remediless  were  he  alive,  and 
the  same  is  true  of  his  friends  who  survive."  The  opinion  concludes  as 
follows:  "This  law  of  privacy  seems  to  have  gained  a  foothold  at  one 
time  in  the  history  of  our  jurisprudence — not  by  that  name,  it  is  true — 
but  in  effect.  It  is  evidenced  by  the  old  maxim  '  the  greater  the  truth 
the  greater  the  libel,"  and  the  result  has  been  the  emphatic  expression  of 
public  disapproval,  by  the  emancipation  of  the  press  and  the  establish: 
ment  of  freedom  of  speech,  and  the  abolition  in  most  of  the  states  of 
the  maxim  quoted  by  constitutional  provisions.  The  limitations 
upon  the  exercise  of  these  rights  being  the  law  of  slander  and  libel, 
whereby  the  publication  of  an  untruth  that  can  be  presumed  or  shown 
to  the  satisfaction,  not  of  the  plaintiff,  but  of  others  (i.  e.,  an  impartial 
jury),  to  be  injurious,  not  alone  to  the  feelings,  but  to  the  reputation,  is 


188    KOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.      [part  l 

actionable.  Should  it  be  thought  that  it  is  a  hard  rule  that  is  applied  in 
this  case,  it  is  only  necessary  to  call  attention  to  the  fact  that  a  ready 
remedy  is  to  be  found  in  legislation.  We  are  not  satisfied,  however,  that 
the  rule  is  a  hard  one,  and  think  that  the  concensus  of  opinion  must  be 
that  the  complainants  contend  for  a  much  harder  one.  The  law  does  not 
remedy  all  evils.  It  cannot,  in  the  nature  of  things;  and  deliberation 
may  well  be  used  in  considering  the  propriety  of  an  innovation  such  as 
this  case  suggests.  We  do  not  wish  to  be  understood  as  belittling  the 
complaint.  We  have  no  reason  to  doubt  the  feeling  of  annoyance  al- 
leged. Indeed,  we  sympathize  with  it,  and  marvel  at  the  impertinence 
which  does  not  respect  it.  We  can  only  say  that  it  is  one  of  the  ills  that 
under  the  law  cannot  be  redressed." 

An  examination  of  the  authorities  leads  us  to  the  conclusion  that  the 
so-called  "  right  of  privacy  "  has  not  as  yet  found  an  abiding  place  in 
our  jurisprudence,  and,  as  we  view  it,  the  doctrine  cannot  now  be  in- 
corporated without  doing  violence  to  settled  principles  of  law  by  which 
the  profession  and  the  public  have  long  been  guided. 

I  do  not  say  that,  even  under  the  existing  law,  in  every  case  of  the 
character  of  the  one  before  us,  or  indeed  in  this  case,  a  party  whose 
likeness  is  circulated  against  his  will  is  without  remedy.  By  section  245 
of  the  Penal  Code  any  malicious  publication  by  picture,  effigy  or  sign 
which  exposes  a  person  to  contempt,  ridicule  or  obloquy  is  a  libel,  and 
it  would  constitute  such  at  common  law.  Malicious  in  this  definition 
means  simply  intentional  and  wilful.  There  are  many  articles,  es- 
pecially of  medicine,  whose  character  is  such  that  using  the  picture  of 
a  person,  particularly  that  of  a  woman,  in  connection  with  the  advertise- 
ment of  those  articles  might  justly  be  found  by  a  jury  to  cast  ridicule 
or  obloquy  on  the  person  whose  picture  was  thus  published.  The  manner 
or  posture  in  which  the  person  is  portrayed  might  readily  have  a  like 
effect.  In  such  cases  both  a  civil  action  and  a  criminal  prosecution 
could  be  maintained.  But  there  is  no  allegation  in  the  complaint  before 
us  that  this  was  the  tendency  of  the  publication  complained  of,  and  the 
absence  of  such  an  allegation  is  fatal  to  the  maintenance  of  the  action, 
treating  it  as  one  of  libel.  This  case  differs  from  an  action  brought  for 
libelous  words.  In  such  case  the  alleged  libel  is  stated  in  the  complaint, 
and  if  the  words  are  libelous  per  se  it  is  unnecessary  to  charge  that  their 
effect  exposes  the  plaintiff  to  disgrace,  ridicule  or  obloquy.  The  law 
attributes  to  them  that  result.  But  where  the  libel  is  a  picture  which 
does  not  appear  in  the  record,  to  make  it  libelous  there  must  be  a  proper 
allegation  as  to  its  character. 

The  judgment  of  the  Appellate  Division  and  of  the  Special  Term 
should  be  reversed  and  questions  certified  answered  in  the  negative, 
without  costs,  and  with  leave  to  the  plaintiff  to  serve  an  amended  com- 
plaint within  twenty  days,  also  without  costs. 

Gray,  J.  (dissenting).  [The  beginning  of  this  opinion  is  omitted.] 
These  defendants  stand  before  the  court,  admitting  that  they  have  made. 


CHAP.  IV.]     EOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.    189 

published  and  circulated,  without  the  knowledf?e  or  the  authority  of  the 
plaintiff,  25,000  lithographic  portraits  of  her,  for  the  purpose  of  profit  and 
gain  to  themselves;  that  these  portraits  have  been  conspicuously  posted 
in  stores,  warehouses  and  saloons,  in  the  vicinity  of  the  plaintiff's  resi- 
dence and  throughout  the  United  States,  as  advertisements  of  their 
goods;  that  the  effect  has  been  to  humiliate  her  and  to  render  her  ill 
and,  yet,  claiming  that  she  makes  out  no  cause  of  action.  They  say  that 
no  law  on  the  statute  books  gives  her  a  right  of  action  and  that  her 
right  to  privacy  is  not  an  actionable  right,  at  law  or  in  equity. 

Our  consideration  of  the  question  thus  presented  has  not  been  fore- 
closed by  the  decision  in  Schuyler  v.  Curtis  (147  N.  Y.  434).  In  that 
case,  it  appeared  that  the  defendants  were  intending  to  make,  and  to  ex- 
hibit, at  the  Columbian  Exposition  of  1893,  a  statue  of  Mrs.  Schuyler, 
formerly  Miss  Mary  M.  Hamilton  and  conspicuous  in  her  lifetime  for  her 
philanthropic  work,  to  typify  "  Woman  as  the  Philanthropist "  and,  as 
a  companion  piece,  a  statue  of  Miss  Susan  B.  Anthony,  to  typify  the 
*'  Representative  Reformer."  The  plaintiff,  in  behalf  of  himself,  as  the 
nephew  of  Mrs.  Schuyler,  and  of  other  immediate  relatives,  sought  by 
the  action  to  restrain  them  from  carrying  out  their  intentions  as  to  the 
statue  of  Mrs.  Schuyler;  upon  the  grounds,  in  substance,  that  they  were 
proceeding  without  his  consent,  (whose  relationship  was  conceded  to  be 
such  as  to  warrant  such  an  action,  if  it  were  maintainable  at  all),  or  that 
of  the  other  immediate  members  of  the  family;  that  their  proceeding 
was  disagreeable  to  him,  because  it  would  have  been  disagreeable  and  ob- 
noxious to  his  aunt,  if  living,  and  that  it  was  annoying  to  have  Mrs. 
Schuyler's  memory  associated  with  principles,  which  Miss  Susan  B.  An- 
thony typified  and  of  which  Mrs.  Schuyler  did  not  approve.  His  right  to 
maintain  the  action  was  denied  and  the  denial  was  expressly  placed  upon 
the  ground  that  he,  as  a  relative,  did  not  represent  any  right  of  privacy 
which  Mrs.  Schuyler  possessed  in  her  lifetime  and  that,  whatever  her 
right  had  been  in  that  respect,  it  died  with  her.  The  existence  of  the  in- 
dividual's right  to  be  protected  against  the  invasion  of  his  privacy,  if 
not  actually  affirmed  in  the  opinion,  was,  very  certainly,  far  from  being 
denied.  "  It  may  be  admitted,"  Judge  Peckham  observed,  when  deliver- 
ing the  opinion  of  the  court,  "  that  courts  have  power,  in  some  cases,  to 
enjoin  the  doing  of  an  act,  where  the  nature,  or  character,  of  the  act 
itself  is  well  calculated  to  wound  the  sensibilities  of  an  individual,  and 
where  the  doing  of  the  act  is  wholly  unjustifiable,  and  is,  in  legal  contem- 
plation, a  wrong,  even  though  the  existence  of  no  property,  as  that  term 
is  usually  used,  is  involved  in  the  suhject." 

That  the  individual  has  a  right  to  privacy,  which  he  can  enforce  and 
which  equity  will  protect  against  the  invasion  of,  is  a  proposition  which 
is  not  opposed  by  any  decision  in  this  court  and  which,  in  my  opinion, 
is  within  the  field  of  accepted  legal  principles.  It  is  within  the  very  case 
supposed  by  Judge  Peckham  in  Schuyler  v.  Curtis.  In  the  present  case, 
we  may  not  say  that  the  plaintiff's  complaint  is  fanciful,  or  that  her 


190    KOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.      [part  i. 

alleged  injury  is,  purely,  a  sentimental  one.  Her  objection  to  the  defend- 
ants' acts  is  not  one  born  of  caprice;  nor  is  it  based  upon  the  defendants' 
act  being  merely  "  distasteful "  to  her.  We  are  bound  to  assume,  and  I 
find  no  difficulty  in  doing  so,  that  the  conspicuous  display  of  her  likeness, 
in  various  public  places,  has  so  humiliated  her  by  the  notoriety  and  by 
the  public  conmients  it  has  provoked,  as  to  cause  her  distress  and  suffer- 
ing, in  body  and  in  mind,  and  to  confine  her  to  her  bed  with  illness. 

If  it  were  necessary,  to  be  entitled  to  equitable  relief,  that  the  plaintiff's 
sufferings,  by  reason  of  the  defendants'  acts,  should  be  serious,  and  ap- 
preciable by  a  pecuniary  standard,  clearly,  we  might  well  say,  under  the 
allegations  of  the  complaint,  that  they  were  of  such  degree  of  gravity. 
However,  I  am  not  of  the  opinion  that  the  gravity  of  the  injury  need  be 
such  as  to  be  capable  of  being  estimated  by  such  a  standard.  If  the  right 
of  privacy  exists  and  this  complaint  makes  out  a  case  of  its  substantial 
violation,  I  think  that  the  award  of  equitable  relief,  by  way  of  an  injunc- 
tion, preventing  the  continuance  of  its  invasion  by  the  defendants,  will 
not  depend  upon  the  complainant's  ability  to  prove  substantial  pecuniary 
damages  and,  if  the  court  finds  the  defendants'  act  to  be  without  justifica- 
tion and  for  selfish  gain  and  purposes,  and  to  be  of  such  a  character,  as 
is  reasonably  calculated  to  wound  the  feelings  and  to  subject  the  plaintiff 
to  the  ridicule,  or  to  the  contempt  of  others,  that  her  right  to  the  preven- 
tive relief  of  equity  will  follow;  without  considering  how  far  her  suffer- 
ings may  be  measurable  by  a  pecuniary  standard. 

The  right  of  privacy,  or  the  right  of  the  individual  to  be  let  alone,  is 
a  personal  right,  which  is  not  without  judicial  recognition.  It  is  the. 
complement  of  the  right  to  the  immunity  of  one's  person.  The  individual 
has  always  been  entitled  to  be  protected  in  the  exclusive  use  and  enjoy- 
ment of  that  which  is  his  own.  The  common  law  regarded  his  person  and 
property  as  inviolate,  and  he  has  the  absolute  right  to  be  let  alone. 
(Cooley  on  Torts,  p.  29.)  The  principle  is  fundamental  and  essential  in 
organized  society  that  every  one,  in  exercising  a  personal  right  and  in  the 
use  of  his  property,  shall  respect  the  rights  and  properties  of  others.  He 
must  so  conduct  himself,  in  the  enjoyment  of  the  rights  and  privileges 
which  belong  to  him  as  a  member  of  society,  as  that  he  shall  prejudice 
no  one  in  the  possession  and  enjoyment  of  those  which  are  exclusively 
his.  When,  as  here,  there  is  an  alleged  invasion  of  some  personal  right  or 
privilege,  the  absence  of  exact  precedent  and  the  fact  that  early  com- 
mentators upon  the  common  law  have  no  discussion  upon  the  subject  are 
of  no  material  importance  in  awarding  equitable  relief.  That  the  exer- 
cise of  the  preventive  power  of  a  court  of  equity  is  demanded  in  a  novel 
case,  is  not  a  fatal  objection.  {Niagara  Falls  Ini.  Bridge  Co.  v.  Great 
Western  Ry.  Co.,  .39  Barb.  212;  Sherman  v.  Shuse,  166  N.  Y.  352;  Hamil- 
ton v.  Whitridge,  11  Md.  14.5.)  In  the  social  evolution,  with  the  march  of 
the  arts  and  sciences  and  in  the  resultant  effects  upon  organized  society, 
it  is  quite  iiitflligil)ln  thnt  new  conditions  must  arise  in  personal  rela- 
tions, which  the  rules  of  the  common  law,  cast  in  the  rigid  mould  of  an 


CHAP.  IV.]     ROBERSON  v.  ROCHESTER  FOLDING  BOX  CO.    101 

earlier  social  status,  were  not  designed  to  meet.    It  would  be  a  reproach 
to  equitable  jurisprudence,  if  equity  were  powerless  to  extend  the  applica- 
tion of  the  principles  of  common  law,  or  of  natural  justice,  in  remedy- 
ing a  wrong,  which,  in  the  progress  of  civilization,  has  been  made  possible 
as  the  result  of  new  social,  or  commercial  conditions.     Sir  Henry  Maine, 
in  his  work  on  Ancient  Law,  has  observed  of  equity,  that  it  is  an  agency 
"  by  which  law  is  brought  into  harmony  with  society,"  and  that  it  is  one 
of  the  factors,  which  operate  in  judicial  evolution.     It  succeeds  legal 
fictions,  or  those  judicial  assumptions,  through  which  a  rule  of  law  is 
modified  in  its  operation,  and  it  precedes  legislation.     (See  Maine's  An- 
cient Law,  pp.  22  to  28.)     Equity  has  neither  fixed  boundaries,  nor  logi- 
cal subdivisions  and  its  origin,  both  in  Rome  and  in  England,  was  that 
there  was  a  wrong  for  which  there  was  no  remedy  at  law.     (See  1st  Story 
Eq.  Juris,  sees.  49  and  50.)     It  supplements  the  deficiencies  of  the  com- 
mon law,  by  applying,  where  otherwise  there  would  result  a  wrong,  those 
principles  of  natural  justice,  which  are  analogous  to  settled  principles 
of  the  common  law.     (See  Story's  Eq.  Jur.  sec.  671,  note.)     Lord  Chan- 
cellor Cottp:niiam  observed,  in  Wallworth  v.  Holt,  (4  Myl.  &  C.  619),  "  I 
think  it  is  the  duty  of  this  court,  (meaning  equity),  to  adopt  its  practice 
and  course  of  proceeding  to  the  existing  state  of  society  and  not,  by  a 
strict  adherence  to  forms  and  rules,  under  different  circumstances,  to 
decline  to  administer  justice  and  enforce  rights  for  which  there  is  no 
other  remedy.     *     *     *     If  it  were  necessary  to  go  much  further  than  it 
is,  in  opposition  to  some  sanctioned  opinions,  in  order  to  open  the  doors  of 
this  court  to  those  who  could  not  obtain  it  elsewhere,  I  should  not  shrink 
from  the  responsibility  of  doing  so."    As  I  have  suggested,  that  the  exer- 
cise of  this  peculiar  preventive  power  of  a  court  of  equity  is  not  found  in 
some  precisely  analogous  case,  furnishes  no  valid  objection,  at  all,  to  the 
assumption  of  jurisdiction,  if  the  particular  circumstances  of  the  case 
show  the  performance,  or  the  threatened  performance,  of  an  act  by  a 
defendant,  which  is  wrongful,  because  constituting  an  invasion,  in  some 
novel  form,  of  a  right  to  something,  which  is,  or  should  be  conceded  to  be, 
the  plaintiff's  and  as  to  which  the  law  provides  no  adequate  remedy.     It 
would  be  a  justifiable  exercise  of  power,  whether  the  principle  of  inter- 
ference be  rested  upon  analogy  to  some  established  common-law  principle, 
or  whether  it  is  one  of  natural  justice.    In  an  article  in  the  Harvard  Law 
Review,  of  December  15th,  1890,  which  contains  an  impressive  argument 
upon  the  subject  of  the  "  right  of  privacy,"  it  was  well   said  by  the 
authors  "  that  the  individual  shall  have  full  protection  in  person  and  in 
property  is  a  principle  as  old  as  the  common  law;  but  it  has  been  found 
necessary  from  time  to  time  to  define  anew  the  exact  nature  and  extent 
of  such  protection.     *     *     *     The  right  to  life  has  come  to  mean  the 
right  to  enjoy  life — the  right  to  be  let  alone ;  the  right  to  liberty  secures 
the  exercise  of  extensive  civil  privileges ;  and  the  term  '  property '  has 
grown   to   comprise   every   form   of   possession — intangible,    as    well    as 
tangible." 


192      EOBERSON  v.  ROCHESTER  FOLDING  BOX  CO.       [part  i. 

Instantaneous  photography  is  a  modern  invention  and  affords  the 
means  of  securing  a  portraiture  of  an  individual's  face  and  form,  in 
invitum  their  owner.  While,  so  far  forth  as  it  merely  does  that,  although 
a  species  of  aggression,  I  concede  it  to  be  an  irremediable  and  irrepres- 
sible feature  of  the  social  evolution.  But,  if  it  is  to  be  permitted  that  the 
portraiture  may  be  put  to  commercial,  or  other,  uses  for  gain,  by  the  pub- 
lication of  prints  therefrom,  then  an  act  of  invasion  of  the  individual's 
privacy  results,  possibly  more  formidable  and  more  painful  in  its  conse- 
quences, than  an  actual  bodily  assault  might  be.  Security  of  person  is 
as  necessary  as  the  security  of  property;  and  for  that  complete  personal 
security,  which  will  result  in  the  peaceful  and  wholesome  enjoyment  of 
one's  privileges  as  a  member  of  society,  there  should  be  afforded  protec- 
tion, not  only  against  the  scandalous  portraiture  and  display  of  one's 
features  and  person,  but  against  the  display  and  use  thereof  for  another's 
commercial  purposes  or  gain.  The  proposition  is,  to  me,  an  inconceivable 
one  that  these  defendants  may,  unauthorizedly,  use  the  likeness  of  this 
young  woman  upon  their  advertisement,  as  a  method  of  attracting  wide- 
spread public  attention  to  their  wares,  and  that  she  must  submit  to  the 
mortifying  notoriety,  without  right  to  invoke  the  exercise  of  the  preven- 
tive power  of  a  court  of  equity. 

Such  a  view,  as  it  seems  to  me,  must  have  been  unduly  influenced 
by  a  failure  to  find  precedents  in  analogous  cases,  or  some  declaration  by 
the  great  commentators  upon  the  law  of  a  common-law  principle  which 
would,  precisely,  apply  to  and  govern  the  action ;  without  taking  into  con- 
sideration that,  in  the  existing  state  of  society,  new  conditions  affecting 
the  relations  of  persons  demand  the  broader  extension  of  those  legal  prin- 
ciples, which  underlie  the  immunity  of  one's  person  from  attack.  I 
think  that  such  a  view  is  unduly  restricted,  too,  by  a  search  for  some 
property,  which  has  been  invaded  by  the  defendants'  acts.  Property  is 
not,  necessarily,  the  thing  itself,  which  is  owned;  it  is  the  right  of  the 
owner  in  relation  to  it.  The  right  to  be  protected  in  one's  possession  of 
a  thing,  or  in  one's  privileges,  belonging  to  him  as  an  individual,  or  se- 
cured to  him  as  a  member  of  the  commonwealth,  is  property,  and  as  such 
entitled  to  the  protection  of  the  law.  The  protective  power  of  equity  is 
not  exercised  upon  the  tangible  thing,  but  upon  the  right  to  enjoy  it;  and, 
so,  it  is  called  forth  for  the  protection  of  the  right  to  that  which  is  one's 
exclusive  possession,  as  a  property  right.  It  seems  to  me  that  the  prin- 
ciple, which  is  applicable,  is  analogous  to  that  upon  which  courts  of 
equity  have  interfered  to  protect  the  right  of  privacy,  in  cases  of  private 
writings,  or  of  other  unpublished  products  of  the  mind.  The  writer,  or 
the  lecturer,  has  been  protected  in  his  right  to  a  literary  property  in  a 
letter,  or  a  lec-ture,  against  its  unauthorized  publication;  because  it  is 
))roperty,  to  which  the  right  of  privacy  attaches.  (Wioolsey  v.  Judd,  4 
Duer,  399;  Gee  v.  Pritchard,  2  Swanst.  402;  Ahernathy  v.  Hutchinson, 
:i  L.  J.  Ch.  209;  Folsom  v.  Marsh.  2  Story,  TOO.)  I  think  that  this 
plaintiff  has  the  same  property  in  the  right  to  be  protected  against  the 


€iiAP.  IV.]     EOBERSON  v.  EOCHESTER  FOLDING  BOX  CO.    193 

use  of  her  face  for  defendants'  commercial  purposes,  as  she  would  have, 
if  they  were  publish iii.u:  her  literary  compositions.  The  right  would  be 
conceded,  if  she  had  sat  for  her  i)hotograph;  but  if  her  face,  or  her  por- 
traiture, has  a  value,  the  value  is  hers  exclusively;  until  the  use  be 
granted  away  to  the  public.  Any  other  principle  of  decision,  in  my  opin- 
ion, is  as  repugnant  to  e(iuity  as  it  is  shocking  to  reason.  Judge  Colt, 
of  the  United  States  Court,  in  Corliss  v.  Walker  Co.,  (G4  Fed.  Rep. 
280-5),  a  case  involving  the  same  question  of  an  invasion  of  the  right 
of  privacy,  with  respect  to  the  publication  of  a  printed  likeness  of  Mr. 
Corliss,  expressed  the  opinion  that  "  independently  of  the  question  of 
contract,  I  believe  the  law  to  be  that  a  private  individual  has  a  right  to  be 
protected  in  the  representation  of  his  portrait  in  any  form;  that  this  is  a 
property  as  well  as  a  personal  right,  and  that  it  belongs  to  the  same  class 
of  rights  which  forbids  the  reproduction  of  a  private  manuscript  or  paint- 
ing, or  the  publication  of  private  letters,  or  of  oral  lectures  delivered  by 
a  teacher  to  his  class,  or  the  revelation  of  the  contents  of  a  merchant's 
books  by  a  clerk."  The  case  itself  is  not  in  point  in  its  facts ;  because  the 
complainant  was  the  widow  of  Mr.  Corliss  and  thus  it  came  within  the 
limitations  of  Schuyler  y.  Curtis. 

The  right  to  grant  the  injunction  does  not  depend  upon  the  existence  of 
property,  which  one  has  in  some  contractual  form.  It  depends  upon  the 
existence  of  property  in  any  right  which  belongs  to  a  person.  In  Pollard 
V.  Photographic  Co.,  (40  Ch.  Div.  345),  it  was  held  that  the  right  to  grant 
an  injunction  against  selling  copies  of  plaintiff's  photographs  did  not  de- 
pend upon  the  existence  of  property  and  that  "  it  is  quite  clear  that 
independently  of  any  question  as  to  the  right  at  law,  the  Court  of  Chan- 
cery always  had  an  original  and  independent  jurisdiction  to  prevent  what 
that  court  considered  and  treated  as  a  wrong,  whether  arising  from  a 
violation  of  an  unquestionable  right,  or  from  breach  of  confidence,  or 
contract,  as  was  pointed  out  by  Lord  Cottenham  in  Prince  Albert  v. 
Strange,  (1  Macn.  &  G.  25)."  In  Prince  Albert  v.  Strange,  Lord  Chan- 
cellor CoTTENHAM  Sustained  the  issuance  of  an  injunction,  upon  the 
ground  that  the  right  of  privacy  had  been  invaded  by  the  publication  and 
sale  of  etchings,  made  by  Prince  Albert  and  Queen  Victoria.  LTpon  the 
original  hearing,  Vice-Chancellor  Knight-Bruce,  in  granting  the  injunc- 
tion, observed  that,  "  upon  the  principle  of  protecting  property,  it  is  that 
the  common  law,  in  cases  not  aided  or  prejudiced  by  statute,  shelters  the 
privacy  and  seclusion  of  thoughts  and  sentiments  committed  to  writing, 
and  desired  by  the  author  to  remain  not  generally  known." 

It  would  be,  in  my  opinion,  an  extraordinary  view  which,  while 
conceding  the  right  of  a  person  to  be  protected  against  the  unauthorized 
circulation  of  an  unpublished  lecture,  letter,  drawing,  or  other  ideal  prop- 
erty, yet,  would  deny  the  same  protection  to  a  person,  whose  portrait  was 
unauthorizedly  obtained,  and  made  use  of,  for  commercial  purposes.  The 
injury  to  the  plaintiff  is  irreparable;  because  she  cannot  be  wholly  com- 
pensated in  damages  for  the  various  consequences  entailed  by  defendants' 


194        PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO.        [part  i. 

acts.  The  only  complete  relief  is  an  injunction  restraining  their  contin- 
uance. Whether,  as  incidental  to  that  equitahle  relief,  she  should  be  able 
to  recover  only  nominal  damages  is  not  material ;  for  the  issuance  of  the 
injunction  does  not,  in  such  a  case,  depend  upon  the  amount  of  the 
damages  in  dollars  and  cents. 

A  careful  consideration  of  the  question  presented  upon  this  appeal  leads 
me  to  the  conclusion  that  the  judgment  appealed  from  should  be  affirmed. 

O'Brien^  Cullen  and  Werner,  J  J.,  concur  with  Parker,  Ch.  J. ;  Bart- 
LETT  and  Haight,  JJ.,  concur  with  G&ay,  J. 

Judgment  reversed,  etc.* 


PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO. 

In  the  Supreme  Court  op  Georgia,  1905. 

[50  Southeastern  Reporter  08.] 

Paolo  Pavesich  brought  an  action  against  the  New  England  Mutual 
Life  Insurance  Company,  a  nonresident  corporation,  Thomas  B.  Lump- 
kin, its  general  agent,  and  J.  Q.  Adams,  a  photographer,  both  residing 
in  the  city  of  Atlanta.  The  allegations  of  the  petition  were,  in  sub- 
stance, as  follows :  In  an  issue  of  the  Atlanta  Constitution,  a  newspaper 
published  in  the  city  of  Atlanta,  there  appeared  a  likeness  of  the  plain- 
tiff, which  would  be  easily  recognized  by  his  friends  and  acquaintances, 
placed  by  the  side  of  the  likeness  of  an  ill-dressed  and  sickly  looking 
person.  Above  the  likeness  of  the  plaintiff  were  the  words:  "Do  it 
now.  The  man  who  did."  Above  the  likeness  of  the  other  person  were 
the  words :  "  Do  it  while  you  can.  The  man  who  didn't."  Below  the 
two  pictures  were  the  words :  "  These  two  pictures  tell  their  own  story." 
Under  the  plaintiff's  picture  the  following  appeared:  "In  my  healthy 
and  productive  period  of  life  I  bought  insurance  in  the  New  England 
Mutual  Life  Insurance  Co.,  of  Boston,  Mass.,  and  to-day  my  family  is 
protected  and  I  am  drawing  an  annual  dividend  on  my  paid-up  policies." 

^  In  aocortlanoe  with  Judge  Parker's  suggestion,  the  New  York  legislature, 
April  6,  190.3,  o.  132,  sec.  2,  provided:  "Any  person  whose  name,  portrait  or 
picture  is  used  within  this  state  for  advertising  purposes  or  for  purposes  of 
trade,  without  the  written  consent  first  ohtained  as  above  provided  may  main- 
lain  an  equitable  action  in  the  Supreme  Court  of  this  state  against  the  person, 
linn  or  corporation  so  using  his  name,  portrait  or  picture,  to  prevent  and  re- 
si  liiiii  1li('  nse  thereof;  and  may  also  sue  and  recover  damages  for  any  in- 
juries sustained  by  reason  of  such  use,  and  if  the  defendant  shall  have  know- 
ingly used  such  person's  name,  portrait  or  picture  in  such  manner  as  is  for- 
bidden or  dcchired  to  be  unlawful  by  this  act,  the  jury,  in  its  discretion,  may 
award  exemplary  damages." 


CHAP.  IV.]       PAVESICII  V.  NEW  ENGLAND  LIFE  INS.  CO.      195 

Under  the  other  person's  picture  was  a  statement  to  the  effect  that  he 
had  not  taken  insurance,  and  now  realized  his  mistake.  The  statements 
were  signed,  "  Thomas  B.  Lumpkin,  General  Afient."  The  picture  of  the 
plaintiff  was  taken  from  a  negative  obtained  by  the  defendant  Lumpkin, 
or  some  one  by  him  authorized,  from  the  defendant  Adams,  which  was 
used  with  his  consent,  and  with  knowledge  of  the  purpose  for  which  it 
was  to  be  used.  The  picture  was  made  from  the  negative  without  the 
plaintiff's  consent,  at  the  instance  of  the  defendant  insurance  company, 
through  its  agent,  Lumpkin.  Plaintiff  is  an  artist  by  profession,  and  the 
publication  is  peculiarly  offensive  to  him.  The  statement  attributed  to 
plaintiff  in  the  publication  is  false  and  malicious.  He  never  made  any 
such  statement,  and  has  not,  and  never  has  had,  a  policy  of  life  insurance 
with  the  defendant  company.  The  publication  is  malicious,  and  tends  to 
bring  plaintiff"  into  ridicule  before  the  world,  and  especially  with  his 
friends  and  acquaintances,  who  know  that  he  has  no  policy  in  the  de- 
fendant company.  The  publication  is  a  "  trespass  upon  plaintiff's  right 
of  privacj%  and  was  caused  by  breach  of  confidence  and  trust  reposed  " 
in  the  defendant  Adams.  The  prayer  was  for  damages  in  the  sum  of 
$25,000.  The  petition  was  demurred  to  generally,  and  specially  on  the 
grounds  that  there  was  a  misjoinder  of  defendants  and  causes  of  action, 
that  no  facts  were  set  forth  from  which  malice  can  be  inferred,  and  that 
no  special  damages  were  alleged.  The  court  sustained  the  general 
demurrer,  and  the  plaintiff  excepted. 

Cobb,  J. — The  petition  really  contains  two  counts — one  for  a  libel, 
and  the  other  for  a  violation  of  the  plaintiff's  right  of  privacy.  There 
was  no  special  demurrer  raising  the  objection  that  the  counts  were  not 
properly  arranged,  as  there  was  in  Cooper  v.  Portner  Brewing  Company, 
112  Ga.  894,  38  S.  PI  91;  and  hence  the  petition  is  to  be  dealt  with  in  re- 
lation to  its  substance,  without  reference  to  its  form. 

We  will  first  deal  with  the  general  demurrer  to  the  second  count,  which 
claimed  damages  on  account  of  an  alleged  violation  of  the  plaintiff's 
right  of  privacy.  The  question  therefore  to  be  determined  is  whether 
an  individual  has  a  right  of  privacy  which  he  can  enforce,  and  which 
the  courts  will  protect  against  invasion.  It  is  to  be  conceded  that  prior 
to  1890  every  adjudicated  case,  both  in  this  country  and  in  England, 
which  might  be  said  to  have  involved  a  right  of  privacy,  was  not  based 
upon  the  existence  of  such  right,  but  was  founded  upon  a  supposed  right 
of  property,  or  a  breach  of  trust  or  confidence,  or  the  like,  and  that  there- 
fore a  claim  to  a  right  of  privacy,  independent  of  a  property,  or  con- 
tractual right,  or  some  right  of  a  similar  nature,  had,  up  to  that  time, 
never  been  recognized  in  terms  in  any  decision.  The  entire  absence  for 
a  long  period  of  time,  even  for  centuries,  of  a  precedent  for  an  asserted 
right  should  have  the  effect  to  cause  the  courts  to  proceed  with  cau- 
tion before  recognizing  the  right,  for  fear  that  they  may  thereby  invade 
the  province  of  the  lawmaking  power;  but  such  absence,  even  for  all 
time,  is  not  conclusive  of  the  question  as  to  the  existence  of  the  right. 


196        PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO.        [part  i. 

The  novelty  of  the  complaint  is  no  objection,  when  an  inquiry  cognizable 
by  law  is  shown  to  have  been  inflicted  on  the  plaintiff.  In  such  case, 
"  although  there  be  no  precedent,  the  common  law  will  judge  according 
to  the  law  of  nature  and  the  public  good."  Where  the  case  is  new  in 
principle,  the  courts  have  no  authority  to  give  a  remedy,  no  matter  how 
great  the  grievance;  but  where  the  case  is  only  new  in  instance,  and  the 
sole  question  is  upon  the  application  of  a  recognized  principle  to  a  new 
case,  "  it  will  be  just  as  competent  to  courts  of  justice  to  apply  the  prin- 
ciple to  any  case  that  may  arise  two  centuries  hence  as  it  was  two 
centuries  ago."  Broom's  Legal  Maxims  (8th  Ed.)  193.  This  results 
from  the  application  of  the  maxim,  "  Ubi  jus  ibi  remedium,"  which  finds 
expression  in  our  Code,  where  it  is  declared  that  "  for  every  right  there 
shall  be  a  remedy,  and  every  court  having  jurisdiction  of  the  one  may, 
if  necessary,  frame  the  other."    Civ.  Code  1895,  §  4929. 

The  individual  surrenders  to  society  many  rights  and  privileges  which 
he  would  be  free  to  exercise  in  a  state  of  nature,  in  exchange  for  the 
benefits  which  he  receives  as  a  member  of  society.  But  he  is  not  pre- 
sumed to  surrender  all  those  rights,  and  the  public  has  no  more  right, 
without  his  consent,  to  invade  the  domain  of  those  rights  which  it  is 
necessarily  to  be  presumed  he  has  reserved,  than  he  has  to  violate  the 
valid  regulations  of  the  organized  government  under  which  he  lives. 
The  right  of  privacy  has  its  foundation  in  the  instincts  of  nature.  It  is 
recognized  intuitively,  consciousness  being  the  witness  that  can  be  called 
to  establish  its  existence.  Any  person  whose  intellect  is  in  a  normal 
condition  recognizes  at  once  that  as  to  each  individual  member  of 
society  there  are  matters  private,  and  there  are  matters  public  so  far  as 
the  individual  is  concerned.  Each  individual  as  instinctively  resents  any 
encroachment  by  the  public  upon  his  rights  which  are  of  a  private  nature 
as  he  does  the  withdrawal  of  those  of  his  rights  which  are  of  a  public 
nature.  A  right  of  privacy  in  matters  purely  private  is  therefore  de- 
rived from  natural  law.  This  idea  is  embraced  in  the  Roman's  concep- 
tion of  justice,  which  "  was  not  simply  the  external  legality  of  acts,  but 
the  accord  of  external  acts  with  the  precepts  of  the  law,  prompted  by  in- 
ternal impulse  and  free  volition."  Mclveldey's  Roman  Law  (Dropsie) 
§  123.  It  may  be  said  to  arise  out  of  those  laws  sometimes  characterized 
as  "  immutable,"  "  because  they  are  natural,  and  so  just  at  all  times  and 
in  all  places  that  no  authority  can  either  change  or  abolish  them."  1 
Domat's  Civil  Law  by  Strahan  (Cushing's  Ed.)  p.  49.  It  is  one  of  those 
rights  referred  to  by  some  law  writers  as  "  absolute  " — "  such  as  would 
belong  to  their  persons  merely  in  a  state  of  nature,  and  which  every  man 
is  entitled  to  enjoy,  whether  out  of  society  or  in  it."  1  Bl.  123.  Among 
the  absolute  rights  referred  to  by  the  commentator  just  cited  is  the  right 
of  personal  security  and  the  right  of  personal  liberty.  In  the  first  is  em- 
braced a  person's  right  to  a  "legal  and  uninterrupted  enjoyment  of  his 
life.  Ills  limbs,  his  body,  his  health,  and  his  reputation";  and  in  the 
second  is  embraced  "  the  power  of  locomotion,  of  changing  situation,  or 


CHAP.  IV.]      PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO.      197 

moving  one's  person  to  whatsoever  place  one's  own  inclination  may 
direct,  without  imprisonment  or  restraint,  unless  by  due  course  of  law." 
1  Bl.  129,  134. 

While  neither  Sir  W^illiam  Blackstone  nor  any  of  the  other  writers  on 
the  principles  of  the  conmion  law  have  referred  in  terms  to  the  right  of 
privacy,  the  illustrations  given  by  them  as  to  what  would  be  a  violation 
of  the  absolute  rights  of  individuals  are  not  to  be  taken  as  exhaustive, 
but  the  language  should  be  allowed  to  include  any  instance  of  a  violation 
of  such  rights  which  is  clearly  within  the  true  moaning  and  intent  of 
the  words  used  to  declare  the  principle.  When  the  law  guaranties  to 
one  the  right  to  the  enjoyment  of  his  life,  it  gives  to  him  something  more 
than  the  mere  right  to  breathe  and  exist.  While,  of  course,  the  most 
flagrant  violation  of  this  right  would  be  deprivation  of  life,  yet  life 
itself  may  be  sjjared,  and  the  enjoyment  of  life  entirely  destroyed.  An 
individual  has  a  right  to  enjoy  life  in  any  way  that  may  be  most  agree- 
able and  pleasant  to  him,  according  to  his  temperament  and  nature,  pro- 
vided that  in  such  enjoyment  he  does  not  invade  the  rights  of  his 
neighbor,  or  violate  public  law  or  policy.  The  right  of  personal  security 
is  not  fully  acco7"ded  by  allowing  an  individual  to  go  through  life  in 
possession  of  all  of  his  members,  and  his  body  unmarred;  nor  is  his  right 
to  personal  liberty  fully  accorded  by  merely  allowing  him  to  remain  out 
of  jail,  or  free  from  other  physical  restraints.  The  liberty  which  he  de- 
rives from  natural  law,  and  which  is  recognized  by  municipal  law,  em- 
braces far  more  than  freedom  from  physical  restraint.  The  term  "  lib- 
erty "  is  not  to  be  so  dwarfed,  "  but  is  deemed  to  embrace  the  right  of 
a  man  to  be  free  in  the  enjoyment  of  the  faculties  with  which  he  has 
been  endowed  by  his  Creator,  subject  only  to  such  restraints  as  are  neces- 
sary for  the  common  welfare.  '  Liberty,'  in  its  broad  sense,  as  under- 
stood in  this  country,  means  the  right  not  only  of  freedom  from  servi- 
tude, imprisonment,  or  restraint,  but  the  right  of  one  to  use  his  faculties 
in  all  lawful  ways,  to  live  and  work  where  he  will,  to  earn  his  livelihood 
in  any  lawful  calling,  and  to  pursue  any  lawful  trade  or  avocation."  See 
Brannon  on  Fourteenth  Amendment,  111.  Liberty  includes  the  right 
to  live  as  one  will,  so  long  as  that  will  does  not  interfere  with  the 
rights  of  another  or  of  the  public.  One  may  desire  to  live  a  life  of  se- 
clusion; another  may  desire  to  live  a  life  of  publicity;  still  another  may 
wish  to  live  a  life  of  privacy  as  to  certain  matters,  and  of  publicity  as 
to  others.  One  may  wish  to  live  a  life  of  toil,  where  his  work  is  of  a 
nature  that  keeps  him  constantly  before  the  public  gaze,  while  another 
may  wish  to  live  a  life  of  research  and  contemplation,  onlj'^  moving  be- 
fore the  public  at  such  times  and  under  such  circumstances  as  may  be 
necessary  to  his  actual  existence.  Each  is  entitled  to  a  liberty  of  choice 
as  to  his  manner  of  life,  and  neither  an  individual  nor  the  public  has  a 
right  to  arbitrarily  take  away  from  him  this  liberty.  See,  in  this  con- 
nection, Cyc.  Law  Diet.  (Shumaker  &  Longsdorff),  and  Bouvier's  Law 
Diet.  tit.  "  Liberty."     All  will  admit  that  the  individual  who  desires  tc 


19S        PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO.         [part  i. 

live  a  life  of  seclusion  cannot  be  compelled,  against  his  consent,  to  ex- 
hibit his  person  in  any  public  place,  unless  such  exhibition  is  demanded 
by  the  law  of  the  land.  He  may  be  required  to  come  from  his  place  of 
seclusion  to  perform  public  duties — to  serve  as  a  juror  and  to  testify 
as  a  witness,  and  the  like;  but,  when  the  public  duty  is  once  performed, 
if  he  exercises  his  liberty  to  go  again  into  seclusion,  no  one  can  deny  hira 
the  right.  One  who  desires  to  live  a  life  of  partial  seclusion  has  a  right 
to  choose  the  times,  places,  and  manner  in  which  and  at  which  he  will 
submit  himself  to  the  public  gaze.  Subject  to  the  limitation  above  re- 
ferred to,  the  body  of  a  person  cannot  be  put  on  exhibition  at  any  time 
or  at  any  place  without  his  consent.  The  right  of  one  to  exhibit  himself 
to  the  public  at  all  proper  times,  in  all  proper  places,  and  in  a  proper 
manner  is  embraced  within  the  right  of  personal  liberty.  The  right  to 
withdraw  from  the  public  gaze  at  such  times  as  a  person  may  see  fit, 
when  his  presence  in  public  is  not  demanded  by  any  rule  of  law,  is  also 
embraced  within  the  right  of  personal  liberty.  Publicity  in  one  instance, 
and  privacy  in  the  other,  are  each  guarantied.  If  personal  liberty  em- 
braces the  right  of  publicity,  it  no  less  embraces  the  correlative  right  of 
privacy,  and  this  is  no  new  idea  in  Georgia  law.  In  Wallace  v.  Railway 
Company,  94  Ga.  732,  22  S.  E.  579,  it  was  said :  "  Liberty  of  speech  and 
of  writing  is  secured  by  the  Constitution,  and  incident  thereto  is  the 
correlative  liberty  of  silence,  not  less  important  nor  less  sacred."  The 
right  of  privacy  within  certain  limits  is  a  right  derived  from  natural 
law,  recognized  by  the  principles  of  municipal  law,  and  guarantied  to 
persons  in  this  state  both  by  the  Constitutions  of  the  United  States  and 
of  the  state  of  Georgia,  in  those  provisions  which  declare  that  no  person 
shall  be  deprived  of  liberty  except  by  due  process  of  law. 

While,  in  reaching  the  conclusion  just  stated,  we  have  been  deprived 
of  the  benefit  of  the  light  that  would  be  shed  on  the  question  by  decided 
cases  and  utterances  of  law  writers  directly  dealing  with  the  matter,  we 
have  been  aided  by  many  side  lights  in  the  law.  The  "  injuria  "  of  the 
Iloman  law,  sometim.es  translated  "  injury,"  and  at  other  times  "  out- 
rage," and  which  is  generally  understood  at  this  time  to  convey  the  idea 
of  legal  wrong,  was  held  to  embrace  many  acts  resulting  in  damage  for 
which  the  law  would  give  redress.  It  embraced  all  of  those  wrongs 
which  were  the  result  of  a  direct  invasion  of  the  rights  of  the  person 
and  the  rights  of  property  which  are  enumerated  in  all  of  the  com- 
mentaries on  the  common  law,  and  which  are  so  familiar  to  every  one  at 
this  time.  But  it  included  more.  x\n  outrage  was  connnitted  not  only 
tiy  striking  with  the  fists  or  with  the  club  or  lash,  but  also  by  shouting 
until  a  crowd  gathered  around  one,  and  it  was  an  outrage  or  legal  wrong 
to  merely  follow  an  honest  woman  or  young  boy  or  girl;  and  it  was  de- 
chircd  ill  unequivocal  terms  that  these  illustrations  were  not  exhaustive, 
liiit  tliiit  an  injury  or  legal  wro!ig  was  committed  "by  numberless  other 
afts."  Sandar's  Just.  (ITammond's  Ed.)  499;  Poste's  Inst,  of  Gaius  (3d 
Ed.)  449.     The  i)unishmeiit  of  one  who  had  not  committed  any  assault 


CHAP.  IV.]       PAVESICII  V.  NEW  EXCLAXD  LIFE  INS.  CO.      199 

upon  another,  or  impeded  in  any  way  his  right  of  locomotion,  but  who 
merely  attracted  public  attention  to  the  other  as  he  was  passing  along 
a  public  highway  or  standing  upon  his  private  grounds,  evidences  the 
fact  that  the  ancient  law  recognized  that  a  person  had  a  legal  right  "  to 
be  let  alone,"  so  long  as  he  was  not  interfering  with  the  rights  of  other 
individuals  or  of  the  public.  This  idea  has  been  carried  into  the  com- 
mon law,  and  appears  from  time  to  time  in  various  places ;  a  conspicuous 
instance  being  in  the  ease  of  private  nuisances  resulting  from  noise 
which  interferes  with  one's  enjoyment  of  his  home,  and  this,  too,  where 
the  noise  is  the  result  of  the  carrying  on  of  a  lawful  occupation.  Even 
in  such  cases  where  the  noise  is  unnecessary,  or  is  made  at  such  times 
that  one  would  have  a  right  to  quiet,  the  courts  have  interfered  by  in- 
junction in  behalf  of  the  person  complaining.  See  2  Wood  on  Nuisances 
(3d  Ed.)  p.  827  et  seq.  It  is  true  that  these  cases  are  generally  based 
upon  the  ground  that  the  noise  is  an  invasicm  of  a  property  right,  but 
there  is  really  no  injury  to  the  property,  and  the  gist  of  the  wrong 
is  that  the  individual  is  disturbed  in  his  right  to  have  quiet.  Under  the 
Roman  law,  "  to  enter  a  man's  house  against  his  will,  even  to  serve  a 
summons,  was  regarded  as  an  invasion  of  his  privacy."  Hunter's  Roman 
Law  (3d  Ed.)  p.  149.  This  conception  is  the  foundation  of  the  common- 
law  maxim  that  "  every  man's  house  is  his  castle  " ;  and  in  Semayne's 
Case,  5  Coke,  91,  1  Smith's  Lead.  Cas.  228,  where  this  maxim  was 
applied,  one  of  the  points  resolved  was  "  that  the  house  of  every  one  is 
to  him  as  his  castle  and  fortress,  as  well  for  his  defense  against  injury 
and  violence  as  for  his  repose."  "  Eavesdroppers,  or  such  as  listen  under 
walls  or  windows  or  the  eaves  of  a  house  to  hearken  after  discourse,  and 
thereupon  to  frame  slanderous  and  mischievous  tales,"  were  a  nuisance 
at  common  law,  and  indictable,  and  were  required,  in  the  discretion  of 
the  court,  to  find  sureties  for  their  good  behavior.  4  Bl.  168.  The  of- 
fense consisted  in  lingering  about  dwelling  houses  and  other  places 
where  persons  meet  for  private  intercourse,  and  listening  to  what  is  said, 
and  then  tattling  it  abroad.  10  Am.  &  Eng.  Enc.  L.  (2d  Ed.)  440.  A 
common  scold  was  at  common  law  indictable  as  a  public  nuisance  to  her 
neighborhood.  4  Bl.  168.  And  the  reason  for  the  punishment  of  such  a 
character  was  not  the  protection  of  any  property  right  of  her  neighbors, 
but  the  fact  that  her  conduct  was  a  disturbance  of  their  right  to  quiet 
and  repose;  the  oifense  being  complete  even  when  the  party  indicted 
committed  it  upon  her  own  premises.  Instances  might  be  multiplied 
where  the  common  law  has  both  tacitly  and  expressly  recognized  the 
right  of  an  individual  to  repose  and  privacy.  The  right  of  the  people  to 
be  secure  in  their  persons,  houses,  papers,  and  effects,  against  unreason- 
able searches  and  seizures,  which  is  so  fully  protected  both  in  the  Consti- 
tutions of  the  United  States  and  of  this  state  (Civ.  Code  1895,  §§  6017, 
5713),  is  not  a  right  created  by  these  instruments,  but  is  an  ancient 
right,  which,  on  account  of  its  gross  violation  at  different  times,  was 
preserved  from  such  attacks  in  the  future  by  being  made  the  subject  of 


200        PAVESICH  V.  NEW  ENGLAND  LIFE  INS.  CO.         [part  i. 

constitutional  provisions.  The  right  to  search  the  papers  or  houses  of 
another  for  the  purpose  of  enforcing  a  claim  of  one  individual  against 
another  is  a  civil  proceeding,  or  in  the  maintenance  of  a  mere  private 
right,  was  never  recognized  at  common  law,  but  such  search  was  confined 
entirely  to  cases  of  public  prosecutions;  and  even  in  those  cases  the 
legality  of  the  search  was  formerly  doubted,  and  it  has  been  said  that  it 
crept  into  the  law  by  imperceptible  practice.  25  Am.  &  Eng.  Enc.  L.  (2d 
Ed.)  145.  The  refusal  to  allow  such  search  as  an  aid  to  the  assertion  of 
a  mere  private  right,  and  its  allowance  sparingly  to  aid  in  maintaining 
the  rights  of  the  public,  is  an  implied  recognition  of  the  existence  of 
a  right  of  privacy,  for  the  law  on  the  subject  of  unreasonable  searches 
cannot  be  based  upon  any  other  principle  than  the  right  of  a  person  to 
be  secure  from  invasion  by  the  public  into  matters  of  a  private  nature, 
which  can  only  be  properly  termed  his  right  of  privacy. 

The  right  of  privacy,  however,  like  every  other  right  that  rests  in  the 
individual,  may  be  waived  by  him,  or  by  any  one  authorized  by  him,  or 
by  any  one  whom  the  law  empowers  to  act  in  his  behalf,  provided  the 
effect  of  his  waiver  will  not  be  such  as  to  bring  before  the  public  those 
matters  of  a  purely  private  nature  which  express  law  or  public  policy 
demands  shall  be  kept  private.  This  waiver  may  be  either  express  or 
implied,  but  the  existence  of  the  waiver  carries  with  it  the  right  to  an 
invasion  of  privacy  only  to  such  an  extent  as  may  be  legitimately  neces- 
sary and  proper  in  dealing  with  the  matter  which  has  brought  about  the 
waiver.  It  may  be  waived  for  one  purpose,  and  still  asserted  for  an- 
other; it  may  be  waived  in  behalf  of  one  class,  and  retained  as  against 
another  class;  it  may  be  waived  as  to  one  individual,  and  retained  as 
against  all  other  loersons.  The  most  striking  illustration  of  a  waiver  is 
where  one  either  seeks  or  allows  himself  to  be  presented  as  a  candidate 
for  public  office.  He  thereby  waives  any  right  to  restrain  or  impede  the 
public  in  any  proper  investigation  into  the  conduct  of  his  private  life 
which  may  throw  light  upon  his  qualifications  for  the  oftice,  or  the  ad- 
visability of  imposing  upon  him  the  public  trust  which  the  ofiice  carries. 
But  even  in  this  case  the  waiver  does  not  extend  into  those  matters  and 
transactions  of  private  life  which  are  wholly  foreign,  and  can  throw  no 
light  whatever  upon  the  question  as  to  his  competency  for  the  oflice,  or 
the  propriety  of  bestowing  it  upon  him.  One  who  holds  public  office 
makes  a  waiver  of  a  similar  character — that  is,  that  his  life  may  be  sub- 
jected at  all  times  to  the  closest  scrutiny  in  order  to  determine  whether 
the  rights  of  the  public  are  safe  in  his  hands — but  beyond  this  the 
waiver  does  not  extend.  So  it  is  in  reference  to  those  belonging  to  the 
learned  professions,  who  by  their  calling  place  themselves  before  the 
public,  and  therebj'  consent  that  tlicir  ]M-iv;it('  lives  may  be  scrutinized 
for  the  purpose  of  determining  whether  it  is  to  the  interest  of  those 
whose  patronage  they  seek  to  place  their  interests  in  their  hands.  In 
short,  any  person  who  engages  in  any  pursuit  or  occupation  or  calling 
which  calls  for  the  approval  or  patronage  of  the  public  submits  his  pri- 


CHAP.  IV.]      PAVESICII  V.  NEW  ENGLAND  LIFE  INS.  CO.      201 

vate  life  to  examination  by  those  to  whom  he  addresses  his  call,  to  any 
extent  that  may  be  necessary  to  determine  whether  it  is  wise  and  proper 
and  expedient  to  accord  to  him  the  approval  or  patronage  which  he 
seeks. 

It  may  be  said  that  to  establish  a  liberty  of  privacy  would  involve  in 
numerous  cases  the  perplexing  question  to  determine  where  this  liberty 
ended,  and  the  rights  of  others  and  of  the  public  began.  This  affords  no 
reason  for  not  recognizing  the  liberty  of  privacy,  and  giving  to  the  per- 
son aggrieved  legal  redress  against  the  wrongdoer,  in  a  case  where  it  is 
clearly  shown  that  a  legal  wrong  has  been  done.  It  may  be  that  there  will 
arise  many  cases  which  lie  near  the  border  line  which  marks  the  right  of 
privacy,  on  the  one  hand,  and  the  right  of  another  individual  or  of  the  pub- 
lic, on  the  other.  But  this  is  true  in  regard  to  numerous  other  rights  which 
the  law  recognizes  as  resting  in  the  individual.  In  regard  to  cases  that 
may  arise  under  the  right  of  privacy,  as  in  cases  that  arise  under  other 
rights  where  the  line  of  demarkation  is  to  be  determined,  the  safeguard 
of  the  individual,  on  the  one  hand,  and  of  the  public,  on  the  other,  is  the 
wisdom  and  integrity  of  the  judiciary.  Each  person  has  a  liberty  of 
privacy,  and  every  other  person  has,  as  against  him,  liberty  in  reference 
to  other  matters,  and  the  line  where  these  liberties  impinge  upon  each 
other  may  in  a  given  case  be  hard  to  define;  but  that  such  a  case  may 
arise  can  afford  no  more  reason  for  denying  to  one  his  liberty  of  pri- 
vacy than  it  would  to  deny  to  another  his  liberty,  whatever  it  may  be. 
In  every  action  for  a  tort  it  is  necessary  for  the  court  to  determine 
whether  the  right  claimed  has  a  legal  existence,  and  for  the  jury  to  deter- 
mine whether  such  right  has  been  invaded,  and  to  assess  the  damages  if 
their  finding  is  in  favor  of  the  plaintiff'.  This  burden  which  rests  upon 
the  court  in  every  case  of  the  character  referred  to  is  all  that  will  be  im- 
posed upon  it  in  actions  brought  for  a  violation  of  the  right  of  privacy. 
No  greater  difficulties  will  be  encountered  in  such  cases  in  determining 
the  existence  of  the  right  than  often  will  be  encountered  in  determining 
the  existence  of  other  rights  sought  to  be  enforced  by  action.  The  courts 
may  proceed  in  cases  involving  the  violation  of  a  right  of  privacy  as 
in  other  cases  of  a  similar  nature,  and  the  juries  may  in  the  same  man- 
ner proceed  to  a  determination  of  those  questions  which  the  law  requires 
to  be  submitted  for  their  consideration.  With  honest  and  fearless  trial 
judges  to  pass  in  the  first  instance  upon  the  question  of  law  as  to  the 
existence  of  the  right  in  each  case,  whose  decisions  are  subject  to  review 
by  the  court  of  last  resort,  and  with  fair  and  impartial  juries  to  pass 
upon  the  questions  of  fact  involved,  and  assess  the  damages  in  the  event 
of  a  recovery,  whose  verdict  is,  under  our  law,  in  all  cases  subject  to 
supervision  and  scrutiny  by  the  trial  judge,  within  the  limits  of  a  legal 
discretion,  there  need  be  no  more  fear  that  the  right  of  privacy  will  be 
the  occasion  of  unjustifiable  litigation,  oppression,  or  wrong  than  that 
the  existence  of  many  other  rights  in  the  law  would  bring  about  such 
results. 


202        PAVESICH  v.  NEW  ENGLAND  LIFE  INS.  CO.         [part  i. 

The  liberty  of  privacy  exists,  has  been  recognized  by  the  law,  and  is  en- 
titled to  continual  recognition.  But  it  must  be  kept  within  its  proper 
limits,  and  in  its  exercise  must  be  made  to  accord  with  the  rights  of 
those  who  have  other  liberties,  as  well  as  the  rights  of  any  person  who 
may  be  properly  interested  in  the  matters  which  are  claimed  to  be  of 
purely  private  concern.  Publicity  in  many  cases  is  absolutely  essential 
to  the  welfare  of  the  public.  Privacy  in  other  matters  is  not  only  essen- 
tial to  the  welfare  of  the  individual,  but  also  to  the  well-being  of  society. 
The  law  stamping  the  unbreakable  seal  of  privacy  upon  communications 
between  husband  and  wife,  attorney  and  client,  and  similar  provisions 
of  the  law,  is  a  recognition  not  only  of  the  right  of  privacy,  but  that,  for 
the  public  good,  some  matters  of  private  concern  are  not  to  be  made  pub- 
lic, even  with  the  consent  of  those  interested. 

It  therefore  follows  from  what  has  been  said  that  a  violation  of  the 
right  of  privacy  is  a  direct  invasion  of  a  legal  right  of  the  individual. 
It  is  a  tort,  and  it  is  not  necessary  that  special  damages  should  have 
accrued  from  its  violation  in  order  to  entitle  the  aggrieved  party  to  re- 
cover. Civ.  Code  1895,  §  3807.  In  an  action  for  an  invasion  of  such 
right  the  damages  to  be  recovered  are  those  for  which  the  law  author- 
izes a  recovery  in  torts  of  that  character,  and,  if  the  law  authorizes  a 
recovery  of  damages  for  wounded  feelings  in  other  torts  of  a  similar 
nature,  such  damages  would  be  recoverable  in  an  action  for  a  violation 
of  this  right. 

The  stumbling  block  which  many  have  encountered  in  the  way  of  a 
recognition  of  the  existence  of  a  right  of  privacy  has  been  that  the  recog- 
nition of  such  right  would  inevitably  tend  to  curtail  the  liberty  of 
speech  and  of  the  press.  The  right  to  speak  and  the  right  of  privacy 
have  been  coexistent.  Each  is  a  natural  right,  each  exists,  and  each 
must  be  recognized  and  enforced  with  due  respect  for  the  other.  The 
right  to  convey  one's  thoughts  by  writing  or  printing  grows  out  of,  but 
■does  not  enlarge  in  any  way,  the  natural  right  of  speech.  It  simply 
authorizes  one  to  take  advantage  of  those  mediums  of  expression  which 
the  ingenuity  of  man  has  contrived  for  broadening  and  making  more 
■effective  the  influences  of  that  which  was  formerly  confined  to  mere  oral 
utterances.  The  right  to  speak  and  write  and  print  has  been  at  different 
times  in  the  world's  history  seriously  invaded  by  those  who,  for  their 
own  selfish  purposes,  desired  to  take  away  from  others  such  privileges, 
and  consequently  these  rights  have  been  made  the  subject  of  provisions 
in  the  Constitutions  of  the  United  States  and  of  this  state.  The  Con- 
stitution of  the  United  States  prohibits  Congress  from  passing  any  law 
"  at)ri(!ging  the  freedom  of  si)eech  or  of  the  press."  Civ.  Code  1895, 
§  0014.  The  constitution  of  this  state  declare  t,  "  No  law  shall  ever  be 
passed  to  curtail  or  restrain  the  liberty  of  speech  or  of  the  press."  Civ. 
Code  1895,  §  5712.  Judge  Cooley  says:  "The  constitutional  liberty  of 
speecli  and  of  the  press,  as  we  understand  it,  implies  a  right  to  freely 
utter  and  publish  whatever  the  citizen  may  please,  and  to  be  protected 


CHAP   IV.]      PAVESICII  V.  NEW  ENGLAND  LIFE  INS.  CO.      203 

against  any  responsibility  for  so  doing,  except  so  far  as  such  publica- 
tions, from  their  blasphemy,  obscenity,  or  scandalous  character,  may  be  a 
public  offense,  or  as  by  their  falsehood  and  malice  they  may  injuriously 
affect  the  standing,  reputation,  or  pecuniary  interests  of  individuals. 
Or,  to  state  the  same  thing  in  somewhat  different  words,  we  uijderstand 
liberty  of  speech  and  of  the  press  to  imply  not  only  liberty  to  publish, 
but  complete  immunity  from  legal  censure  and  punishment  for  the  pub- 
lication, so  long  as  it  is  not  harmful  in  its  character,  when  tested  hy 
such  standards  as  the  law  affords.  For  these  standards  wo  must  look  to 
the  common-law  rules  which  were  in  force  when  the  constitutional  guar- 
anties were  established,  and  in  reference  to  which  they  have  been 
adopted."  Cool.  Con.  Lim.  (5th  Ed.)  p.  52L  In  Rex  v.  St.  Asaph,  3 
Term  Rep.  428,  Lord  Mansfield  said:  "The  liberty  of  the  press  con- 
sists in  printing  without  anj'  previous  license,  subject  to  the  consequence 
of  law."  Chancellor  Kent,  while  Judge  of  the  Supreme  Court  of  New 
York,  in  People  r.  Croswell,  3  Johns.  Cas.  330,  394,  adopted  as  a  defini- 
tion of  the  phrase  "  liberty  of  the  press  "  what  was  said  by  General  Ham- 
ilton in  his  brief  in  that  case,  where  it  was  set  forth  that  "  the  liberty 
of  the  press  consists  in  the  right  to  publish,  with  impunity,  truth,  with 
good  motives,  and  for  justifiable  ends,  whether  it  respects  government, 
magistracy,  or  individuals";  and  the  learned  jurist  declared  that  this 
definition  was  perfectly  correct,  comprehensive  and  accurate.  Mr. 
Justice  Story  defined  the  phrase  to  mean  "  that  every  man  shall  have 
a  right  to  speak,  write,  and  print  his  opinions  upon  any  subject  what- 
soever, without  any  prior  restraint,  so,  always,  that  he  does  not  injure 
any  other  person  in  his  rights,  person,  property,  or  reputation,  and  so, 
always,  that  he  does  not  thereby  disturb  the  public  peace  or  attempt  to 
subvert  the  government."  Story,  Const.  §  1880.  See,  also,  18  Am.  & 
Eng.  Enc.  Law  (2d  Ed.)  112.5. 

The  constitution  of  this  state  declares  what  is  meant  by  "liberty  of 
speech  "  and  "  liberty  of  the  press  "  in  the  following  words :  "  Any  per- 
son may  speak,  write  and  publish  his  sentiments  on  all  subjects,  being 
responsible  for  the  abuse  of  that  liberty."  Civ.  Code  1895,  §  5712. 
The  right  preserved  and  guarantied  against  invasion  by  the  Constitution 
is  therefore  the  right  to  utter,  to  write,  and  to  print  one's  sentiments, 
subject  only  to  the  limitation  that  in  so  doing  he  shall  not  be  guilty  of 
an  abuse  of  this  privilege,  by  invading  the  legal  rights  of  others.  The 
Constitution  uses  the  word  "  sentiments,"  but  it  is  used  in  the  sense  of 
thoughts,  ideas,  opinions.  To  make  intelligent,  forceful,  and  effective 
an  expression  of  opinion,  it  may  be  necessary  to  refer  to  the  life,  con- 
duct, and  character  of  a  person;  and,  so  long  as  the  truth  is  adhered  to, 
the  right  of  privacy  of  another  cannot  be  said  to  have  been  invaded  by 
one  who  speaks  or  writes  or  prints,  provided  the  reference  to  such  person, 
and  the  manner  in  which  he  is  referred  to,  is  reasonably  and  legitimately 
Droper  in  an  expression  of  opinion  on  the  subject  that  is  under  investiga- 
tion.   It  will  therefore  be  seen  that  the  right  of  privacy  must  in  some 


204        PAVESICH  v.  NEW  ENGLAND  LIFE  INS.  CO.        [part  i. 

particulars  yield  to  the  right  of  speech  and  of  the  press.  It  is  well  rec- 
ognized that  slander  is  an  abuse  of  the  liberty  of  speech,  and  that  a  libel 
is  an  abuse  of  the  liberty  to  write  and  print,  but  it  is  nowhere  expressly 
declared  in  the  law  that  these  are  the  only  abuses  of  such  rights.  And 
that  the  law  makes  the  truth  in  suits  for  slander  and  in  prosecutions 
and  suits  for  libel  a  complete  defense  may  not  necessarily  make  the  pub- 
lication of  the  truth  the  legal  right  of  every  person,  nor  prevent  it  from 
being  in  some  cases  a  legal  wrong.  The  truth  may  be  spoken,  written, 
or  printed  about  all  matters  of  a  public  nature,  as  well  as  matters  of 
a  private  nature  in  which  the  public  has  a  legitimate  interest.  The 
truth  may  be  uttered  and  printed  in  reference  to  the  life,  character,  and 
conduct  of  individuals  whenever  it  is  necessary. to  the  full  exercise  of 
the  right  to  express  one's  sentiments  on  any  and  all  subjects  that  may  be 
proper  matter  for  discussion.  But  there  may  arise  cases  where  the 
speaking  or  printing  of  the  truth  might  be  considered  an  abuse  of  the 
liberty  of  speech  and  of  the  press,  as  in  a  case  where  matters  of  purely 
private  concern,  wholly  foreign  to  a  legitimate  expression  of  opinion  on 
the  subject  under  discussion,  are  injected  into  the  discussion  for  no  other 
purpose  and  with  no  other  motive  than  to  annoy  and  harass  the  indi- 
vidual referred  to.  Such  cases  might  be  of  rare  occurrence,  but,  if  such 
should  arise,  the  party  aggrieved  may  not  be  without  a  remedy.  The 
right  of  privacy  is  unquestionably  limited  by  the  right  to  speak  and 
print.  It  may  be  said  that  to  give  liberty  of  speech  and  of  the  press  such 
wide  scope  as  has  been  indicated  would  impose  a  very  serious  limitation 
upon  the  right  of  privacy,  but,  if  it  does,  it  is  due  to  the  fact  that  the 
law  considers  that  the  welfare  of  the  public  is  better  subserved  by  main- 
taining the  liberty  of  speech  and  of  the  press  than  by  allowing  an  indi- 
vidual to  assert  his  right  of  privacy  in  such  a  way  as  to  interfere  with 
the  free  expression  of  one's  sentiments,  and  the  publication  of  every 
matter  in  which  the  public  may  be  legitimately  interested.  In  many 
cases  the  law  required  the  individual  to  surrender  some  of  his  natural 
and  private  rights  for  the  benefit  of  the  public,  and  this  is  true  in  ref- 
erence to  some  phases  of  the  right  of  privacy  as  well  as  other  legal  rights. 
Those  to  whom  the  right  to  speak  and  write  and  print  is  guarantied 
must  not  abuse  this  right,  nor  must  one  in  whom  the  right  of  privacy 
exists  abuse  this  right.  The  law  will  no  more  permit  an  abuse  by  the 
one  than  by  the  other.  Liberty  of  speech  and  of  the  press  is  and  has 
been  a  useful  instrument  to  keep  the  individual  within  limits  of  lawful, 
decent,  and  proper  conduct;  and  the  right  of  privacy  may  be  well  used 
within  its  proper  limits  to  keep  those  who  speak  and  write  and  print 
within  the  legitimate  bounds  of  the  constitutional  guaranties  of  such 
rights.  One  may  be  used  as  a  check  upon  the  other,  but  neither  can  be 
lawfully  used  for  the  other's  destruction.' 

As  we  have  already  said,  cases  may  arise  where  it  is  difficult  to  de- 
'  That  part  of  tbo  opinion  which  reviews  the  American  decisions  on  the  ques- 
tion has  been  omitted. 


CHAP.  IV.]       PAVESICH  v.  NEW  ENGLAND  LIFE  INS.  CO.      205 

termine  on  which  side  of  the  line  of  demarkation  which  separates  the 
right  of  privacy  from  the  well-established  rights  of  others  they  are  to  be 
found;  but  we  have  little  difficulty  in  arriving  at  the  conclusion  that  the 
present  case  is  one  in  which  it  has  been  established  that  the  right  of  pri- 
vacy has  been  invaded,  and  invaded  by  one  who  cannot  claim  exemption 
under  the  constitutional  guaranties  of  freedom  of  speech  and  of  the 
press.  The  form  and  features  of  the  plaintiff  are  his  own.  The  defend- 
ant insurance  company  and  its  agent  had  no  more  authority  to  display 
them  in  public  for  the  purpose  of  advertising  the  business  in  which  they 
were  engaged  than  they  would  have  had  to  compel  the  plaintiff  to  place 
himself  upon  exhibition  for  this  purpose.  The  latter  jjrocedure  would 
have  been  unauthorized  and  unjustifiable,  as  every  one  will  admit,  and 
the  former  was  equally  an  invasion  of  the  rights  of  his  person.  Nothing 
appears  from  which  it  is  to  be  inferred  that  the  plaintiff  has  waived  his 
right  to  determine  himself  where  his  picture  should  be  displaj^ed  in  favor 
of  the  advertising  right  of  the  defendants.  The  mere  fact  that  he  is 
an  artist  does  not  of  itself  establish  a  waiver  of  this  right,  so  that  his 
picture  might  be  used  for  advertising  purposes.  If  he  displayed  in  pub- 
lic his  works  as  an  artist,  he  would,  of  course,  subject  his  works  and  his 
character  as  an  artist,  and  possibly  his  character  and  conduct  as  a  man, 
to  such  scrutiny  and  criticism  as  would  be  legitimate  and  proper  to  de- 
termine whether  he  was  entitled  to  rank  as  an  artist,  and  should  be 
accorded  recognition  as  such  by  the  public.  But  it  is  by  no  means 
clear  that  even  this  would  have  authorized  the  publication  of  his 
picture.  The  constitutional  right  to  speak  and  print  does  not  necessarily 
carry  with  it  the  right  to  reproduce  the  form  and  features  of  man.  The 
plaintiff  was  in  no  sense  a  public  character,  even  if  a  different  rule  in 
regard  to  the  publication  of  one's  picture  should  be  applied  to  such 
characters.  It  is  not  necessary  in  this  case  to  hold — nor  are  we  prepared 
to  do  so — that  the  mere  fact  that  a  man  has  become  what  is  called  a 
public  character,  either  by  aspiring  to  public  office,  or  by  holding  public  of- 
fice, or  by  exercising  a  profession  which  places  him  before  the  public,  or 
by  engaging  in  a  business  which  has  necessarily  a  public  nature,  gives  to 
every  one  the  right  to  print  and  circulate  his  picture.  To  use  the  language 
of  Hooker,  J.,  in  Atkinson  v.  Doherty,  supra :  "  We  are  loath  to  believe 
that  the  man  who  makes  himself  useful  to  mankind  surrenders  any  right 
to  privacy  thereby,  or  that,  because  he  permits  his  picture  to  be  published 
by  one  person  and  for  one  purpose,  he  is  forever  thereafter  precluded  from 
enjoying  any  of  his  rights."  It  may  be  that  the  aspirant  for  public  office, 
or  one  in  official  position,  impliedly  consents  that  the  public  may  gaze 
not  only  upon  him  but  upon  his  picture,  but  we  are  not  prepared  now  to 
hold  that  even  this  is  true.  It  would  seem  to  us  that  even  the  President 
of  the  United  States,  in  the  lofty  position  which  he  occupies,  has  some 
rights  in  reference  to  matters  of  this  kind  which  he  does  not  forfeit  by 
aspiring  to  or  accepting  the  highest  office  within  the  gift  of  the  people  of 
the  several  states.     While  no  person  who  has  ever  held  this  position. 


206        PAVESICH  v.  NEW  ENGLAND  LIFE  INS.  CO.         [part  \j 

and  probably  no  person  who  has  ever  held  public  office,  has  even  objected 
or  ever  will  object  to  the  re*production  of  his  picture  in  reputable  news- 
papers, magazines,  and  periodicals,  still  it  cannot  be  that  the  mere  fact 
that  a  man  aspires  to  public  office  or  holds  public  office  subjects  him 
to  the  humiliation  and  mortification  of  having  his  picture  displayed  in 
places  where  he  would  never  go  to  be  gazed  upon,  at  times  when  and 
under  circumstances  where  if  he  were  personally  present  the  sensibilities 
of  his  nature  would  be  severely  shocked.  If  one's  picture  may  be  used 
by  another  for  advertising  purposes,  it  may  be  reproduced  and  exhibited 
anywhere.  If  it  may  be  used  in  a  newspaper,  it  may  be  used  on  a 
poster  or  a  placard.  It  may  be  posted  upon  the  walls  of  private  dwell- 
ings or  upon  the  streets.  It  may  ornament  the  bar  of  the  saloon  keeper 
or  decorate  the  walls  of  a  brothel.  By  becoming  a  member  of  society, 
neither  man  nor  woman  can  be  presumed  to  have  consented  to  such  uses 
of  the  impression  of  their  faces  and  features  upon  paper  or  upon  canvas. 
The  conclusion  reached  by  us  seems  to  be  so  thoroughly  in  accord  with 
natural  justice,  with  the  principles  of  the  law  of  every  civilized  nation, 
and  especially  with  the  elastic  principles  of  the  common  law,  and  so  thor- 
oughly in  harmony  with  those  principles  as  molded  under  the  influence 
of  American  institutions,  that  it  seems  strange  to  us  that  not  only  four 
of  the  judges  of  one  of  the  most  distinguished  and  learned  courts  of  the 
Union,  but  also  lawyers  of  learning  and  ability,  have  found  an  insur- 
mountable stumbling  block  in  the  path  that  leads  to  a  recognition  of 
the  right  which  would  give  to  persons  like  the  plaintiff  in  this  case  and 
the  young  woman  in  the  Roberson  Case  redress  for  the  legal  wrong,  or 
what  is  by  some  of  the  law  writers  called  the  outrage,  perpetrated  by  the 
unauthorized  use  of  their  pictures  for  advertising  purposes. 

What  we  have  ruled  cannot  be  in  any  sense  construed  as  an  abridg- 
ment of  the  liberty  of  speech  and  of  the  press  as  guarantied  in  the  Con- 
stitution. Whether  the  reproduction  of  a  likeness  of  another  which  is 
free  from  caricature  can  in  any  sense  be  declared  to  be  an  exercise  of 
the  right  to  publish  one's  sentiments,  certain  it  is  that  one  who  merely 
for  advertising  purposes,  and  from  mercenary  motives,  loublishes  the 
likeness  of  another  without  his  consent,  cannot  be  said,  in  so  doing,  to 
have  exercised  the  right  to  publish  his  sentiments.  The  publication  of 
a  good  likeness  of  another,  accompanying  a  libelous  article,  would  give 
a  right  of  action.  The  publication  of  a  caricature  is  generally,  if  not 
always,  a  libel.  Whether  the  right  to  print  a  good  likeness  of  another  is 
an  incident  to  a  right  to  express  one's  sentiments  in  reference  to  a  sub- 
ject with  which  the  person  whose  likeness  is  published  is  connected,  is 
a  c|uostion  upon  which  we  cannot,  under  the  present  record,  make  any 
autlioritative  decision;  but  it  would  seem  that  a  holding  that  the  publi- 
cation of  a  likeness  under  such  circumstances  without  the  consent  of 
the  person  whose  likeness  is  published  is  allowable  would  be  giving 
to  thc!  v.'ord  "sentiment"  a  very  extended  meaning.  The  use  of  a  pen 
portrait  might  be  allowable  in  some  cases  where  the  use  of  an  actual 


CHAP.  IV.]       PAVESICII  v.  NEW  ENGLAND  LIFE  INS.  CO.      207 

portrait  was  not  permissible.  There  is  in  the  publication  of  one's  picture 
for  advertising  purposes  not  the  slightest  semblance  of  an  expression  of 
an  idea,  a  thought,  or  an  opinion,  within  the  meaning  of  the  con- 
stitutional provision  which  guaranties  to  a  person  the  right  to  publish 
his  sentiments  on  any  subject.  Such  conduct  is  not  embraced  within  the 
liberty  to  print,  but  is  a  serious  invasion  of  one's  right  of  privacy,  and 
may  in  many  cases,  according  to  the  circumstances  of  the  publication 
and  the  uses  to  which  it  is  put,  cause  damages  to  flow  which  are  ir- 
reparable in  their  nature.  The  knowledge  that  one's  features  and  form 
are  being  used  for  such  a  purpose,  and  displayed  in  such  places  as  such 
advertisements  are  often  liable  to  be  found,  brings  not  only  the  person  of 
an  extremely  sensitive  nature,  but  even  the  individual  of  ordinary  sensi- 
bility, to  a  realization  that  his  liberty  has  been  taken  away  from  him; 
and,  as  long  as  the  advertiser  uses  him  for  these  i)urposes,  he  cannot  be 
otherwise  than  conscious  of  the  fact  that  he  is  for  the  time  being  under 
the  control  of  another,  that  he  is  no  longer  free,  and  that  he  is  in  reality 
a  slave,  without  hope  of  freedom,  held  to  service  by  a  merciless  master; 
and  if  a  man  of  true  instincts,  or  even  ordinary  sensibilities,  no  one  can 
be  more  conscious  of  his  enthrallment  than  he  is. 

So  thoroughly  satisfied  are  we  that  the  law  recognizes,  within  proper 
limits,  as  a  legal  right,  the  right  of  privacy,  and  that  the  publication  of 
one's  picture  without  his  consent  by  another  as  an  advertisement,  for  the 
mere  purpose  of  increasing  the  profits  and  gains  of  the  advertiser,  is  an 
invasion  of  this  right,  that  we  venture  to  predict  that  the  day  will 
come  that  the  American  bar  will  marvel  that  a  contrary  view  was  ever 
entertained  by  judges  of  eminence  and  ability,  just  as  in  the  present 
day  we  stand  amazed  that  Lord  Coke  should  have  combated  with  all  the 
force  of  his  vigorous  nature  the  proposition  that  the  court  of  chancery 
had  jurisdiction  to  entertain  an  application  for  injunction  to  restrain 
the  enforcement  of  a  common-law  judgment  which  had  been  obtained 
-by  fraud,  and  that  Lord  Hale,  with  perfect  composure  of  manner  and 
complete  satisfaction  of  soul,  imposed  the  death  penalty  for  witchcraft 
upon  ignorant  and  harmless  women.' 

^  It  will  be  observed  that  this  is  a  case  at  law  for  damages,  but  if  privacy 
be  established  as  an  existing  legal  right,  Equity  will  recognize  and  give 
effect  in  an  appropriate  case  to  any  violation  of  the  right  where  damages  at 
law  would  be  inadequate,  for.  in  the  language  of  the  maxim,  Equity  follows 
the  law. 

Lack  of  space  has  compelled  the  omission  of  the  authorities  cited  and 
discussed  by  the  learned  judge  in  the  course  of  his  elaborate  and  convincing 
opinion.    For  these  the  student  is  referred  to  the  original  report. 


208  JOAN,  QUEEN  OF  ENGLAND  v.  BISHOP        [part  i. 

JOAN,  QUEEN  OF  ENGLAND,  v.  BISHOP. 

In  Chancery,  before  Lord  Chancellor  Stafford,  1432-1438. 

[1  Calendars  of  the  Proceedings  in  Chancery  xxiii.] 

To  the  very  reverend  Father  in  God  the  Bishop  of  Bath,  Chancellor 
of  England, 

Joan,  Queen  of  England,  sheweth  and  complaineth  of  Robert  Bishop, 
Walter  Coty,  and  John  Turgeys,  That  .whereas  Henry,  late  King  of 
England  her  husband,  whom  God  assoil,  by  his  letters  patent  of  the  4th 
day  of  June,  in  the  fourth  year  of  his  reign,  granted  and  gave  to  the  said 
suppliant  the  manor  of  Gillingham,  with  the  appurtenances  in  the 
County  of  Dorset,  to  have  and  to  hold,  in  the  name  of  dower;  the  which 
manor  is  ancient  demesne  of  the  crown,  and  hath  such  custom  used  from 
all  time  whereof  memory  runneth  not,  that  all  men  of  native  condition, 
who  are  willing  to  come  and  dwell  within  the  same  manor,  shall  be  re- 
ceived to  dwell  there  freely  and  peaceably,  without  claim  or  impeach- 
ment of  their  bodies,  land,  tenements,  goods,  or  chattels  of  any  one. 
There  came  the  said  Robert,  Walter,  and  John,  with  force  and  arms, 
that  is  to  say,  with  swords,  bucklers,  bows,  and  arrows,  armed  and  ar- 
rayed to  make  war,  into  the  said  manor,  on  Saturday  next  before 
the  feast  of  St.  Katherine  last  past,  and  the  close  of  one  Ralph 
Palmer  broke,  and  there  made  an  assault  on  one  Nichol  Newport,  nief 
of  the  abbess  of  Wilton,  then  being  in  the  service  of  the  said  Ralph,  and 
the  said  Nichol  then  took  and  led  away  out  of  the  franchise  of  the  said 
manor,  against  the  peace,  and  in  contempt  of  our  Lord  the  King,  to  the 
damage  of  the  said  Queen  of  100  I.  May  it  please  your  Lordship  to 
grant  several  writs  under  certain  penalties  by  you  to  be  limited,  [to 
compel  the  said  Robert,  Walter,  and  John]  to  appear  before  you  in 
chancery  at  the  quinzime  of  Easter  next  ensuing,  to  answer  as  well  to 
our  Lord  the  King,  as  to  the  said  Queen,  of  the  matter  aforesaid. 

Pledges  to  prosecute  \  ^  ,       _  "^     *         , 
\  John   I'aryngton. 

*  For  a  discussion  of  the  early  criminal  jurisdiction  exercised  by  the  Court 
of  Chancery,  see  1  Spence  Jurisdiction  of  tlie  Court  jf  Chancery  Pt.  2,  B.  1, 
c.  4;  Pt.  2,  B.  4,  c.  2;  Kerly,  History  of  Equity  71;  Palgrave,  The  King's 
r<jiiii<il  §  xii;  and  an  article  by  Edwin  S.  Mack,  16  Harvard  Law  Review  389. 

In  an  earlier  case,  Alyngion,  f^heriff  v.  t^ihill  el  al  (temp.  Henry  V.)  2 
Calends  v.  the  defendants  had  rescued  from  the  plaintifT,  and  his  posse,  certain 
parties,  held  by  the  sheriff  under  a  writ  issued  in  a  case  of  trespass.  The  bill 
alleged  the  beating,  wounding,  and  ill-treatment  of  one  of  the  posse  "so  that 
he  was  and  yet  is  in  despair  of  his  life."  The  bill  concluded,  "Please  your 
very  gracious  lordship  to  consider  the  great  riot  and  rebellion  made  in  this 


CHAP.  IV.]      HOLDERSTAFFE  v.   SAUNDERS  209 

HOLDERSTAFFE  v.   SAUNDERS. 

King's  Bench,  1704. 

[6  Modern  16.] 

Hooper,  Serjeant,  moved  for  an  attachment  against  an  attorney  and 
some  others,  who  had  f?ot  one   in  quiet  possession  turned  out,  thus : 

He  got  one  to  come  upon  the  land,  who  assumed  the  name  of  the 
tenant  in  possession,  and  owned  himself  to  be  the  man,  and  got  the  com- 
mon affidavit  of  service  to  him  by  the  borrowed  name,  as  tenant  in 
possession,  having  delivered  a  declaration  to  him  before,  and  thereupon 
got  judgment  against  the  casual  ejector,  and  turned  the  tenant,  who  was 
■wholly  ignorant  of  all,  out  of  possession. 

Upon  affidavit  of  this  matter,  all  the  accomplices  were  ordered  to 
attend ;  for  though  the  Court  looked  upon  it  as  a  very  great  offence,  they 
would  not  at  first  grant  an  attachment;  but  said,  that  it  being  in  a 
criminal  matter,  if  endeavours  were  used  to  serve  them  with  the  rule, 
and  they  could  not  be  found,  upon  affidavit  of  that  matter,  they  would 
grant   an   attachment,   without   requiring   personal   service. 

PIooPER,  Serjeant,  then  insisted  to  have  it  part  of  the  rule,  that  they 
should  not  move  for  an  injunction  in  chancery  in  the  mean,  time,  for 
that  would  hinder  the  further  inquiry  of  this  practice. 

But  THE  Court  said,  they  could  not  do  that,  for  that  would  be  to  send 
an  injunction  into  chancery;  but  they  said,  that  when  the  Court  had  a 
hank  over  a  man,  and  he  came  for  a  favour  to  the  Court,  they  often 
refuse  to  grant  him  that,  without  he  consented  not  to  go  into  chancery; 
and  that  if  after  such  consent  he  would  go,  they  would  send  an  attach- 
ment against  him  for  a  contempt. 

And  Holt,  Chief  Justice,  said.  Surely  chancery  will  not  grant  an 
injunction  in  a  criminal  matter  under  examination  in  this  court ;  and 
that  if  they  did,  this  Court  would  break  it,  and  protect  any  that  would 
proceed  in  contempt  of  it:  and  he  said,  he  thought  that  copies  of  these 
affidavits  upon  which  the  rule  was  made  here,  and  an  oath  of  their  being 
true  copies,  ought  to  be  ground  sufficient  to  stay  the  chancery  from  grant- 
ing an  injunction. 

behalf,  in  contempt  of  our  soverign  lord  the  King  and  in  subversion  of  his 
law,  and  thereupon  to  cause  the  said  William  Sibill,  John  Webbe,  and  Robert 
Repham  to  come  before  you  in  the  chancery  of  our  said  lord  the  King  and 
thereupon  to  inflict  due  punishment,  remedy,  and  redress,  according  as  the 
law  demands,  for  God  and  in  the  work  of  Charity." 


210  LIONEL  PILKINGTON  [part  i. 


THE  MAYOR  AND  COEPORATION  OF  YORK  v.  SIR  LIONEL 

PILKINGTON. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1742. 

[2  Athyns  302.] 

The  plaintiffs  claim  the  sole  right  of  fishing  in  tRe  river  Ouse;  the 
defendant  claims  the  right  likewise;  a  bill  and  cross  bill  were  brought, 
to  establish  their  several  rights. 

While  these  suits  were  depending,  the  plaintiffs  caused  the  agent  of 
the  defendant  to  be  indicted  at  York  sessions,  where  they  themselves 
are  judges,  for  a  breach  of  the  peace,  in  fishing  in  their  liberty. 

A  motion  was  made  on  behalf  of  the  defendant,  to  stop  the  prosecution. 

Lord  Chancellor.  This  court  has  not  originally,  and  strictly,  any 
restraining  power  over  criminal  prosecutions;  and,  in  this  case,  if  the 
defendant  had  applied  to  the  Attorney-General,  he  would  have  granted 
a  noli  prosequi. 

For  when  a  complaint  is  grounded  on  a  civil  right,  for  which  an 
action  of  trespass  would  lie,  the  Attorney-General  of  course  grants  a 
noli  prosequi. 

This  is  a  complaint  merely  for  fishing  in  the  river,  without  any  actual 
breach  of  the  peace,  which  the  mayor  and  corporation  say,  is  a  trespass 
upon  them. 

If  it  could  be  made  to  appear  at  law,  that  the  plaintiffs  were  both 
judges  and  parties,  it  might  come  out  to  be  coram  non  judice,  but  it 
might  be  difficult  to  make  out  this. 

If  actions  of  trespass  had  been  brought  vi  et  armis,  this  court  would 
have  stopped  them ;  but  though  I  cannot  grant  an  injunction,  yet  I  may 
certainly  make  an  order  upon  the  prosecutors  to  prevent  the  proceeding 
on  the  indictment. 

Supposing  it  was  a  suit  for  a  right  of  land  where  entries  had  been 
made,  and  the  bill  was  brought  to  quiet  the  possession,  and  after  that 
they  prefer  an  indictment  for  a  forcible  entry,  which  is  of  a  double 
nature,  as  it  partal^es  of  a  breach  of  the  peace,  and  is  also  a  civil  right, 
this  court  would  certainly  stop  the  proceedings  upon  such  indictment. 
.  Whore  parties  submit  their  right  to  the  court,  they  have  certainly 
a  jurisdiction,  and  may  interpose. 

Therefore  I  will  make  an  order  to  restrain  the  plaintiffs  from  pro- 
ceeding at  the  sessions,  till  the  hearing  of  the  cause  and  further  oj-der.* 

'"Wliy  oii^'lit  -A  Court  (if  Kqnity  to  iniorforo  wiili  tlio  ordinary  proceedings 
of  ii  ciiiniiiMl  court?  1  ;\\\\  not  awMic  tlint  any  sncli  power  exists.  The  point 
came  hcfote  tiic  in  Saull  i\  IJrowne   (Law  Itcp.    10  Cli.  fit),  wliere  1  declined  to 


CHAP.  IV.]  TURNER  V.   TURNER  211 

TURNER  V.  TURNER. 
In  Chancery,  befork  Lord  Craxwortii,  V.  C,  1851, 

[15  Jurist  218.| 

In  this  case  a  suit  had  been  instituted  for  the  administration  of  the 
estate  of  William  Turner,  deceased,  and  in  the  course  of  it  a  receiver  had 
been  appointed,  and  an  injunction  had  been  issued  restraining  the  de- 
fendants William  Stephens  Meryweather  and  Mary  Ann  his  wife  from 
carrying  on  actions  of  ejectment  for  the  recovery  of  any  part  of  the 
lands  and  hereditaments  of  the  said  William  Turner.  Part  of  the  lands 
and  hereditaments  consisted  of  an  old  mansion-house,  near  Plaistow; 
and  by  an  order  made  in  this  cause  on  the  7th  May,  1850,  it  was  ordered, 
that  the  receiver  should  be  at  liberty  to  pull  down  the  mansion-house 
and  dispose  of  the  materials.  The  receiver  accordingly,  on  the  29th  May, 
sent  a  solicitor,  accompanied  by  a  builder  and  workmen,  to  pull  the 
house  down.  On  arriving  at  it  they  found  a  woman  in  possession,  who 
stated  that  she  had  been  placed  therein  by  the  defendant  William 
Stephens  Meryweather,  and  who  refused  to  open  the  door.  The  solicitor 
thereupon  pushed  open  the  door  and  entered  with  the  workmen:  the 
house  was  pulled  down  and  the  materials  sold,  and  the  produce  accounted 
for  in  the  receiver's  account.  William  Stephens  Meryweather  had  since 
preferred  a  bill  of  indictment  against  the  solicitor,  builder,  and  work- 
men, for  forcibly  entering  and  expelling  him  from  the  said  mansion- 
house.  One  of  the  parties  to  the  suit  now  presented  a  petition,  praying 
that  William  Stephens  Meryweather  might  be  restrained  from  prosecu- 
ting this  indictment. 

Bolt  and  Prior,  in  support  of  the  petition,  cited  YorTc  v.  Pilkington  (2 
Atk.  302)  and  The  Attorneij-General  v.  Cleaver,  (18  Ves.  220). 

Henniker  (Bethell  with  him,  absent)  opposed. — This  Court  never  inter- 
feres to  restrain  criminal  proceedings.  (Holdernesse  v.  Saxinders,  6 
Mod.  19;  Montagu  v.  Dudman,  2  Ves.  292).  At  all  events,  costs  cannot 
be  given  against  us. 

Hardy,  for  other  parties. 

Lord  Cranworth,  V.  C. — I  shall  certainly  make  an  order  restraining 
Mr.  Meryweather  from  prosecuting  the  indictment.     The  distinction  is 

interfere  with    criminal   proceedings  or   to   follow  Lord   Hardwicke's   doubtful 
decision  in  Mayor  of  York  v.  Pilkington  (2  Atk.  302). 

"My  decision  was  appealed  from,  and  the  Lord  Justices  thought  it  a  right 
decision.  With  the  exception  of  that  case  before  Lord  Hardwicke,  there  is  no 
instance  in  which  a  Court  of  Equity  has  interfered  in  criminal  proceedings.  I 
do  not  say  that  the  court  might  not  interfere  in  a  possible  case,  but  as  a  gen- 
eral rule  it  will  not."  Jessel,  M.  R.,  in  Kerr  v.  Corporation  of  Preston,  1877, 
6  Ch.  Div.  463,  467. 


212  SAULL  V.  BROWNE  [part  i. 

very  intelligible;  this  Court  has  no  jurisdiction  over  an  indictment  in 
general,  as  over  a  mere  civil  proceeding,  but  this  is  merely  with  reference 
to  its  own  jurisdiction.  If  the  Court  makes  an  order  to  which  all  parties 
consent,  or  by  which  all  parties  must  be  considered  as  bound,  and  then 
any  party  chooses  to  obstruct  the  parties  executing  it,  the  Court  will 
certainly  prevent  him  from  proceeding  against  the  officer  of  the  Court 
for  doing  that  which  he  would  have  been  punished  by  the  Court  for  not 
doing.  I  shall  not  make  an  injunction  under  the  seal  of  the  Court  but 
an  order  restraining  Mr.  Meryweather  from  prosecuting  this  indictment. 
The  costs  of  all  parties  except  Mr.  Meryweather  to  come  out  of  the 
estate.' 


SAULL  V.  BROWNE. 

In  the  Court  of  Appeal,  1874. 

[Law  Reports,  10  Chancery  Appeals  64.] 

Sarah  Saull,  the  executrix  of  Thomas  Saull,  filed  the  bill  in  this 
suit  against  her  co-executor,  William  Saull,  and  Browne  and  Godfrey, 
two  other  persons  who  were  partners  with  the  executors  in  a  wine  and 
spirit  business.  The  bill  alleged  divers  acts  of  misconduct  on  the 
part  of  Browne  and  Godfrey,  and  that,  acting  in  collusion,  they  had 
formed  a  scheme  for  transferring  the  business  so  as  to  injure  the  plain- 
tiff; and  the  bill  prayed  for  a  sale  of  the  partnership  property,  and 
for  accounts,  and  for  payment  of  all  profits  made,  and  compensation 
for  losses  occasioned  by  the  removal  of  the  business  to  another  place 
of  business.     The  defendants  answered  in  January,  18Y3. 

On  the  13th  of  November,  1874,  Sarah  Saull  obtained  from  the 
Police  Court  at  Worship  Street  a  summons  against  Browne  and  God- 

'See  Crighto  v.  Dalsmor  (1893)  21  L.  R.  A.  (Miss.)  84;  Attorney  Gen.  v. 
Cleaver  (1811)   18  Vea.  211. 

"It  is  when  the  parties  sought  to  be  enjoined,  have  as  plaintiffs,  submitted 
themselves  to  the  Court  by  a  bill  in  Equity  as  to  the  matter  or  right  affected 
by  or  involved  in  the  criminal  procedure  that  Equity  has  jurisdiction."  Per 
liillingn  J.,  in  Spink  v.  Francis    (1884)    19  Fed.  670. 

"When  a  suit  in  equity  is  ponding  and  one  of  the  parties  thereto  institutes 
a  criminal  proceeding  in  a  Court  of  Law,  or  before  a  magistrate,  which  is  of 
the  same  nature  as  the  civil  proceeding,  then  the  Court  of  Chancery  has  juris- 
diction to  make  an  order  restraining  the  party  from  prosecuting  the  criminal 
j)roceeding;  and  this  on  the  ground  that  the  other  party  to  the  suit  in  Chan- 
cery ought  not  to  be  twice  harassed  by  a  suit  in  respect  of  the  same  pro- 
ceeding." Per  firymour  Thompson  in  18  Am.  Law  Rev.  599,  601. 


CHAP.  IV.]  SAULL  V.  BROWNE  213 

frey,  for  unlawfully  conspiring  to  defraud  her  of  her  just  share  in  the 
partnership  business. 

An  application  was  then  made  to  the  Master  of  the  Rolls  on  behalf 
of  Browne  and  Godfrey  for  leave  to  give  short  notice  of  motion  to  re- 
strain the  proceedings  on  the  summons;  but  the  Master  of  the  Rolls 
thought  he  should  have  no  jurisdiction  to  make  the  order,  and  refused 
leave. 

The  motion  was  now,  by   leave,   made   before  the   Court  of   Appeal. 

Lord  Cairns  L.  C  I  should  be  unwilling  to  express  any  doubt  that 
there  may  be  cases  in  which  criminal  proceedings  instituted  by  a  party 
to  a  suit  in  this  court  are  so  identical  with  the  civil  proceedings  as 
to  induce  this  court  to  order  that  the  same  person  shall  not  at  the 
same  time  pursue  his  remedy  in  this  court  and  pursue  another  remedy 
which  ranges  itself  under  the  head  of  criminal  jurisdiction.  No  doubt 
there  may  be  such  a  case,  and  the  authorities  which  have  been  referred 
to,  when  properly  understood,  entirely  come  under  the  description  which 
I  have  given. 

In  the  present  case  the  bill  was  filed  by  a  plaintiff  alleging  various 
matters  as  to  a  partnership  with  the  defendants,  and  asking  for  the 
interference  of  the  court  for  the  protection  of  the  property  of  the  part- 
nership. I  make  no  observation  as  to  the  prospects  of  success  in  this 
suit :  with  that  I  have  now  nothing  to  do,  and  as  to  that  of  course  I 
know  nothing.  But  I  find  that  the  same  plaintiff  has  taken  out  a  sum- 
mons before  a  police  magistrate  against  the  defendants,  or  some  of 
them,  alleging  that  they  have  entered  into  a  conspiracy,  and  in  the 
course  of  it  have  injured  the  plaintiff  as  to  the  partnership  property. 
That  summons  is  based  entirely  upon  criminal  proceedings,  and  the 
object  is  to  obtain  the  punishment  of  the  persons  charged  with  the 
conspiracy.  It  appears  to  me  that  the  thing  which  is  sought  by  this 
summons  is  different  from  anything  which  could  be  obtained  in  this 
court.  No  doubt  the  criminal  court  may  have  to  consider  the  ques- 
tion of  property,  but  the  object  of  the  summons  is  not  to  obtain  relief 
as  to  the  property,  but  to  obtain  punishment  for  the  defendants  in  their 
persons. 

We  put  it  to  the  defendants'  counsel  whether,  if  before  the  suit  was 
commenced  a  summons  of  this  kind  had  been  taken  out,  this  court 
could  interfere  with  the  proceedings,  and  it  was  admitted  that  the 
court  could  not  interfere.  So  also  it  cannot  be  doubted  that,  after 
relief  has  been  given  by  this  court  in  this  suit,  a  criminal  court  might 
be  applied  to,  and  the  punishment  of  the  defendants  might  be  obtained. 

'"Cairns  was  confessedly  the  first  lawyer  of  his  time;  his  especial  char- 
acteristic was  lucidity.  Without  any  great  parade  of  case  law,  he  would  ex- 
haust the  argument  from  principle  and  only  in  conclusion  illustrate  it  by 
citing  a  few  decisions.  As  a  judge  he  did  not  explain  the  process  by  which  his 
mind  had  been  persuaded,  but  adhered  to  strict  reasoning  his  mind  working 
like  a  logical  machine."     Dictionary  National  Biography,  Article  Cairns. 


214  SAULL  V.  BROWNE  [part  i. 

If,  then,  such  proceedings  might  be  taken  either  before  or  after  the 
suit,  it  is  difficult  to  see  why  they  should  not  be  taken  at  the  same  time 
and  concurrently  with  the  suit.  There  is  no  inconsistency  in  allowing 
both  proceedings,  as  nothing  which  takes  place  on  the  summons  can  be 
evidence  in  the  suit. 

It  would  be  in  the  discretion  of  the  magistrate  whether  to  hear  the 
case  or  not;  but  that  is  for  his  discretion,  not  for  ours.  Or,  if  the 
summons  should  result  in  an  indictment,  it  will  be  for  the  Attorney- 
General  to  consider  whether  such  a  proceeding  ought  to  be  allowed  to 
go  on ;  but  that,  again,  rests  in  his  discretion,  not  in  ours. 

There  is  no  authority  for  us  to  make  such  an  order,  and  the  motion 
must  be  dismissed  with  costs. 

Sir  W.  M.  Ja^ies,  L.  J.'  I  am  of  the  same  opinion.  In  old  times 
this  court  might  well  have  been  asked  to  interfere  w^ith  criminal  pro- 
ceedings taken  against  an  officer  of  the  court  for  the  purpose  of  harass- 
ing him,  as  he  had  no  other  sufficient  protection.  There  is  an  old  de- 
cision referred  to  in  the  note  to  Francklyn  v.  Colhoun,  3  8w.  276,  280,  n. 
that  resisting  and  killing  a  sequestrator  was  not  murder.  At  that  time, 
therefore,  the  court  had  cause  to  interfere  with  criminal  proceedings, 
but  the  cause  for  so  doing  has  now  ceased.  The  authority  produced  to 
us,  Mayor  of  York  v.  Pilkington,  2  Atlc.  302  is,  as  far  as  I  know,  the 
only  case  in  which  this  court  has  made  such  an  order  as  we  are  now 
asked  to  make;  and  even  that  case  is  not  exactly  similar,  because  it  ap- 
pears that  the  same  right  would  there  have  been  tried  in  both  courts. 

Sir  G.  Mellish,  L.J.^  I  am  of  the  same  opinion.  The  power  of  this 
court  to  interfere  with  a  criminal  proceeding  can  only  arise  when  the 
criminal  proceeding  is  of  the  same  nature  as  the  civil  proceeding.  The 
only  case  cited  was  of  that  nature,  but  here  the  proceedings  are  quite 
different,  and  this  court  is  not  called  upon  to  interfere.' 

'  "He  was  a  most  eminent  judge,  exceptionally  learned,  shrewd  and  strong, 
and  gifted  with  a  great  power  of  terse  and  clear  enunciation  of  principles.  The 
court  of  appeals  under  him  and  Lord  Justice  Mellish  was  a  very  efficient 
court."     Dictionary  National   Biography,  article   James. 

*"The  exi)crimont  of  appointing  a  common  law  practitioner  to  so  important 
a  post  in  chancery  was  bold,  but  it  was  justified  by  its  success  and  the  court, 
which  consisted  of  him  and  Lord  Justice  James,  continued  for  some  years  to 
give  judgments  of  the  highest  importance  and  value.  *  *  *  His  chief  ju- 
dicial fault  was  an  eager  habit  of  controversially  interrupting  the  arguments 
tiy  counsel,  but  his  learning  was  profound,  his  intellect  logical  and  clear,  and 
his  character  impartial  and  amiable."  Dictionary  National  Biography,  article 
Mcllisli. 

'■•'Tlic  fact  that  the  jurisdiction  of  a  court  of  equity  is  exclusively  civil  is 
(liic!  ])artly  to  the  manner  of  its  establishment  and  in  part  to  the  complexion 
of  lOnglish  jurisprudence  at  the  time  when  the  early  cliancellors  first  began  to 
issue  writs  under  the  great  seal  of  the  king  and  to  try  causes.  To  the 
Court  of  King's  I'.cncii  tlie  king  had  already  allotted  a  supreme  original 
jurisdiction  formerly  exercised  by  tlie  aula  regis  or  court  of  the  king.     Cromp- 


CHAP.  IV.]     OCEAN  CITY  ASSOCIATION  v.  SCHUECH  215 


OCEAN  CITY  ASSOCIATION  v.  SCIITJRCH. 

In  the  Court  of  Ciianckry  of  New  Jersey,  1898. 

[57  New  Jersey  Equity  268.] 

Grey,  V.  C. 

The  complainant  in  this  bill  is  a  corporation  of  this  state  which  has 
sold  land  at  Ocean  City  to  a  person  under  whom  the  defendant  has 
possession  by  a  deed  containing  a  restrictive  covenant  to  the  effect  that 
"  no  business  of  any  kind  whatever  shall  be  carried  on  upon  the  said 
premises  upon  the  Lord's  day,"  &c.  By  the  deeds  passing  the  title  by  suc- 
cessive steps  to  the  defendant's  landlord,  this  and  other  restrictions  were 
notified  to  the  grantees,  and  by  them  accepted.  The  bill  alleges  that  the 
defendant,  for  pr.y,  delivers  bathing  suits  and  permits  the  use  of  bath- 
ton  King's  Bench  and  Common  Pleas,  Int.,  p.  xxvi.  The  jurisdiction  of  a 
covut  of  equity  consisted  of  that  portion  of  the  king's  prerogative  whicli 
he  had  not  delegated  to  his  judges  by  writ.  Langdell's  Summary  of  Equity 
Pleading,  p.  28.  When,  therefore,  a  court  of  equity  was  asked  to  enjoin  a 
criminal  proceeding,  it  was  confronted  with  a  peculiar  situation.  By  a  fiction 
of  tlie  law  the  king  was  deemed  to  be  so  much  a  party  to  a  criminal  cause 
that  a  non-suit  could  not  be  entered,  but  the  prosecutor  must  enter  a  nolle 
prosequi,  1  Bl.  Com.  269,  270.  It  was  but  natural  that  the  result  should  be 
reached  that  equity  would  not  interfere  where  the  petition  amounted  in  sub- 
stance to  a  prayer  that  the  king's  chancellor  frustrate  the  operation  of  the 
king's  justice.  It  is  true  that  at  one  time  in  the  history  of  English  law  the 
chancellors  were  vested  with  criminal  jurisdiction.  This,  however,  was  the 
result  of  the  inability  or  actual  unwillingness  of  the  magistrates  to  protect 
against  the  oppression  of  the  feudal  barons,  and  was  statutory  in  its  origin. 
4  Hen.  VII.  c.  12  sec.  2.  Spence  Equity  Jurisdiction,  Vol.  1.  p.  343  and  notes." 
2  Columhia  Laio  Rev.  550. 

So  usually  a  Court  of  Equity  will  not  enjoin  a  criminal  proceeding;  Kerr 
V.  Corporation  of  Preston  (1876)  L.  R.  6  Ch.  Div.  466;  but  when  property 
would  otherwise  be  ruined,  an  injunction  has  been  gi-anted,  as  when  the  plain- 
tiff ought  to  enjoin  arrests  of  his  workmen  under  a  Sunday  law.  Manhattan 
Iron  Works  v.  French  (1882)  12  Abb.  N.  C.  446;  and  see  accord  Barlow  v. 
Vestry  (1883)  48  Law  Times  N.  S.  348;  Wood  v.  City  of  Brooklyn  (lS.-i2)  14 
Barb.  425 ;  there  equity  is  without  power  to  decide  the  guilt  or  innocence  of  a 
party.     See  Davis  v.  American  Society    (1878)    75  N.   Y.   362. 

"It  is  further  insisted  that  the  action  in  equity  authorized  by  the  statute 
cannot  be  maintained,  because  the  legislature  has  no  power  to  enforce  a  crimi- 
nal law  by  a  civil  action.  But  "on  maintaining  a  nuisance  may  not  only  be 
punished  in  a  criminal  proceeding,  but  a  civil  action  at  law  to  recover  dam- 
ages in  a  proper  case,  and  an  action  in  equity  to  restrain  the  nuisance,  may  be 
prosecuted  against  him.  Richards  r.  Holt.  61  Iowa,  529;  Ewell  v.  Greenwood. 
26  Id.,  377.     These  cases  were  decided  without  any  reference  to  a  statute  ex- 


216  OCEAN  CITY  ASSOCIATION  v.  SCHURCII     [part  i. 

houses  on  the  demised  property  upon  the  Lord's  day  in  breach  of  the 
covenant,  and  prays  that  he  may  be  enjoined  Irom  such  breaches. 

The  complainant  insists  that  it  is  entitled  to  special  consideration  in 
its  effort  to  restrain  a  breach  of  this  covenant,  because  it  is  seeking  to 
enforce  the  observance  of  the  religious  obligations  to  keep  the  Sabbath 
holy,  and  its  application  is  in  aid  of  the  prohibitions  of  the  Vice  and 
Immorality  acts,  against  the  doing  of  business  on  Sunday. 

This  court  will  aid  by  its  remedies  in  the  enforcement  of  all  lawful 
covenants  where  the  applicants  appear  to  have  an  equitable  right  to 
their  use.  But  it  cannot  excuse  from  the  obligation  of  diligent  applica- 
tion because  the  remedy  sought,  would  if  granted,  enforce  a  religious 
duty,  whether  of  a  Christian  or  a  Hebrew. 

So  far  as  the  complainant  seeks  the  aid  of  this  court  because  the  acts 
of  the  defendant  are  obnoxious  to  the  Vice  and  Immorality  acts  and  in 
the  nature  of  a  crime,  there  is  the  highest  authority  for  the  refusal  to 
allow  an  injunction  simply  to  prevent  the  commission  of  a  crime.  Lord 
Eldon,  in  Gee  v.  Priichard,  2  Swanst.  413,  declared  that  the  court  had  no 

pressl}'  authorizing  an  action  in  equity,  in  addition  to  criminal  punishment. 
It  ought  not  to  be  claimed  that  a  statute  is  unconstitutional  which  merely 
provides  a  remedy  which  was  available  without  the  statute.  And  it 
must  be  remembered  that  the  defendant  is  not  convicted  and  punished  for 
a  crime  by  the  injunction.  It  belongs  to  that  class  of  remedies  which  may 
properly  be  provided  by  statute  to  aid  in  the  administration  of  preventive 
justice.  It  stays  the  arm  of  the  wrong-doer.  It  does  not  seek  to  punish  him 
for  any  past  violations  of  the  law.  Its  purpose  is  to  prevent  a  public  offense, 
and  suppress  what  the  law  declares  to  be  a  nuisance.  The  denial  of  a  trial 
by  jury  is  not  as  oppressive  to  the  party  charged,  as  the  statute  requiring  a 
person  who  threatens  to  commit  a  public  offense  to  give  bonds  with  sure- 
ties to  keep  the  peace  towards  the  people  of  the  state,  and,  in  default  of 
giving  the  bond,  committing  him  to  prison.  Code,  §§  4115-4119.  So  far  as 
we  are  advised,  no  one  has  ever  claimed  that  the  law  requiring  security 
to  keep  the  peace  was  a  denial  of  the  right  of  trial  by  jury. 

"The  defendant,  in  order  to  succeed  in  the  defense  that  the  proceeding  by  in- 
junction is  an  attempt  to  enforce  a  criminal  law  by  civil  process,  demands, 
in  effect,  that  the  courts  must  establish  the  principle  that,  because  the  nui- 
sance complained  of  is  a  crime,  it  is  entitled  to  favor  and  protection  in  a 
court  of  equity.  Such  rule  would  not  command  the  respect  or  approval  of 
any  one. 

"There  are  many  adjudged  cases,  aside  from  those  above  cited,  which  ex- 
pressly hold  that  the  fact  that  a  nuisance  is  a  crime,  and  punishable  as  such, 
does  not  deprive  equity  of  its  jurisdiction  to  restrain  and  abate  it  by  injunc- 
tion. People  V.  City  of  St.  Louis,  .5  Gillman,  (111.)  351;  Attorney-general 
V.  Railroad  Co.,  3  Greene,  (N.  J.,)  Kq.,  l-'ifi;  Attorney-general  v.  Hunter,  1 
Dev.  Eq.,  12;  Hinke  v.  Hopeman,  87  111.,  450.  And  this  rule  applied  to  ac- 
tions by  private  individuals,  and  to  suits  for  the  benefit  and  in  behalf  of  the 
imhVu:"—f'rr  Itolhrnck,  J.,  in  Littleton  v.  Fritz   (1885)   f)5  Iowa  488,  494. 

The  cases  generally  are  in  accord.  Sec  them  collected  in  a  note  in  1  Ames 
Cases  in  Equity  Jurisdiction  35. 


CHAP.  IV.]     OCEAN  CITY  ASSOCIATION  v.  SCIIURCH  217 

jurisdiction  to  prevent  the  commission  of  crimes.  This  does  not  deny 
the  preventive  jurisdiction  of  this  court  to  protect  property  from  a 
threatened  act  which,  if  completed,  would  give  a  right  of  action. 
Emperor  of  Austria  v.  Kossuth,  3  De  G.,  F.  dc  J.  240.  But  if  the  act 
to  be  restrained  constitutes  a  crime  only,  and  is  not  destructive  of  prop- 
erty nor  of  a  character  which  will  result  in  pecuniary  damage,  an  injunc- 
tion will  not  be  allowed.  It  is  quite  obvious,  therefore,  that  the  supposed 
criminal  phase  of  the  acts  of  the  defendant  cannot  be  considered  by  this 
court  as  a  ground  for  e(iuitable  relief.  If  the  furnishing  the  means  for 
a  Sunday  bath  is  the  conducting  of  business  obnoxious  to  the  criminal 
law,  that  law  affords  remedies  quite  as  immediate  in  their  restraint  upon 
the  criminal  as  is  the  process  of  this  court.  This  relief  has  always  been 
at  hand  and  may  yet  be  invoked  without  liability  to  the  reply  that  the 
prosecutor  has  by  delay  acquiesced  in  the  wrongdoing. 

It  may  be  suggested  that  the  affording  the  opportunity  for  a  Sunday 
bath  is  within  the  exception  in  the  Vice  and  Immorality  acts,  that  it  is 
a  work  of  necessity  or  of  charity,  but  this  is  a  matter  which  must  be 
left  to  the  determination  of  another  court. 

The  stated  breaches  of  the  covenant  do  not  appear  to  inflict  any  pecu- 
niary loss  upon  the  complainant,  nor  has  their  public  persistent  char- 
acter heretofore  led  the  complainant  to  apply  for  a  restraint.  As  a 
preliminary  injunction  might  be  the  cause  of  great  pecuniary  loss  to 
the  defendant,  I  see  no  sufficient  reason  to  change  the  situation,  pending 
the  suit,  from  that  in  which  the  complainant  has  for  some  years  been 
content  to  leave  it. 

I  will  advise  an  order  dismissing  the  order  to  show  cause  and  the 
ad  interim   restraint.' 

-'As  to  the  obsolete  criminal  jurisdiction  of  the  Court  of  Chancery,  see 
1  Spence  Eq.  Juris.  342,  685. 

"Prior,  to  the  reign  of  Richard  II  and  long  after  the  chancellor  entertained 
jurisdiction  to  restrain  persons  from  committing  quasi  criminal  offenses  and 
acts  of  violence.  But  it  was  always  averred  that  by  reason  of  combination  or 
the  power  of  the  party  threatening  or  doing  a  wrong  act,  he  had  power  to 
prevent  or  pervert  the  administration  of  justice  in  the  common  law  courts. 
But  when  the  state  of  society  became  more  settled  this  jurisdiction  was 
abandoned  and  has  never  since  been  claimed  or  exercised."  Per  Mr.  Justice 
Walker  in  Staurt  v.  Logan  Co.  (1876)  83  III.  341;  see  Moses  v.  Mayor  ct  al. 
(1875)  52  Ala.  198.  The  Chancellor  also  at  one  time  punished  perjury  com- 
mitted in  his  court.    See  1  Spencer  Eq.  Jurisdiction  691,  and  cases  cited. 


218  LITTLETON  v.  BURGESS  [part  i. 

LITTLETON  v.  BURGESS. 

In  the  Supreme  Court  of  Wyoming,  1905. 

[82  Pacific  Reporter  864.'] 

Van  Orsdel,  J.,  delivered  the  opinion  of  the  court : 

This  is  an  injunction  proceeding  brought  in  the  district  court  of 
Sheridan  county  by  the  plaintiff  in  error  against  the  defendant  in  error 
for  the  purpose  of  restraining  the  latter,  as  prosecuting  attorney  of 
Sheridan  county,  from  prosecuting  the  former  for  violations  of  the  pro- 
visions of  chapter  65,  p.  68,  Sess.  Laws  1901,  being  an  act  prohibiting 
gambling  within  the  State  of  Wyoming.  Plaintiff,  in  his  amended  peti- 
tion alleges,  among  other  things,  that,  on  the  28th  day  of  July,  1904, 
he  was  granted  licenses  by  the  town  of  Sheridan,  permitting  him  to  con- 
duct and  carry  on  games  of  faro  and  roulette  in  a  building  occupied  by 
him  in  said  town ;  that  said  licenses  were  issued  under  and  by  virtue  of  an 
ordinance  regularly  enacted  by  the  town  council  of  said  town ;  that 
the  authority  for  the  enactment  of  said  ordinance  is  found  in  the  pro- 
visions of  a  special  charter  granted  by  the  legislature  of  the  territory 
of  Wyoming  for  the  incorporation  of  said  town,  wherein,  among  other 
powers  granted,  the  town  is  empowered  and  authorized  "to  levy  and 
collect  a  license  tax  from  billiard  tables,  bowling  alleys,  and  other  games 
and  gaming  tables" ;  that  said  provision  of  said  charter  was  not  re- 
pealed by  said  chapter  65,  and  is  still  in  full  force  and  effect;  that, 
notwithstanding  said  licenses,  the  defendant,  in  the  name  of  the  State  of 
Wyoming,  filed  three  informations  in  the  district  court  of  Sheridan 
county  charging  plaintiff  with  violations  of  the  provisions  of  said  chapter 
65 ;  and  that  defendant  threatened  to  file  additional  informations  against 
plaintiff  for  each  and  every  violation  of  said  statute.  It  is  further  al- 
leged in  the  petition  that  said  chapter  65  is  unconstitutional  and  void. 
Plaintiff  prayed  for  a  temporary  restraining  order  enjoining  the  de- 
fendant from  interfering  with  the  plaintiff  in  carrying  on,  running  or 
conducting  the  games  of  faro  and  roulette  within  the  corporate  limits 
of  the  town  of  Sheridan,  and  from  causing  further  arrests  of  the  plain- 
tiff; and  that  at  the  final  hearing  said  temporary  injunction  should  be 
made  permanent.  Defendant  demurred  to  the  petition  on  the  following 
grounds:  "(1)  That  the  said  amended  petition  does  not  state  facts  suf- 
ficient to  constitute  a  cause  of  action;  (2)  that  this  court  has  no  juris- 
diction of  the  subject  of  the  action."  The  demurrer  was  sustained  by 
the  court,  and,  plaintiff  refusing  further  to  plead,  judgment  was  entered 
dismissing  the  action  and  awarding  costs  to  defendant,  from  which 
judgment  plaintiff  brings  error  to  this  court. 

Thf"  j)rinr'ipal  question  that  confronts  us,  and  one  which  we  think  is 

'S.  C.  2  L.  R.  A.,  N.  S.,  G31. 


CHAP.  IV.]  LITTLETON    v.  BURGESS  219 

decisive  of  this  case,  is  whether  a  court  of  equity  has  jurisdiction  to  afford 
the  relief  sought  by  the  plaintiff.  The  jurisdiction  of  a  court  of  equity, 
unless  expressly  made  so  by  statute,  is  limited  to  the  protection  of  the 
rights  of  property.  It  has  no  jurisdiction  over  the  prosecution  of  crimes. 
To  assume  such  jurisdiction  is  to  invade  the  dominion  of  the  courts  of 
law,  and  both  the  executive  and  administrative  departments  of  govern- 
ment. Let  us  investigate  for  a  moment  vphere  the  contention  of  plaintiff, 
if  sustained,  would  lead.  The  defendant  is  the  prosecuting  attorney  of 
Sheridan  county,  charged  with  the  duty  of  prosecuting  within  his  county 
all  infractions  of  the  criminal  laws  of  the  State.  He  was  proceeding 
under  the  provisions  of  a  general  statute  of  the  State  making  gambling 
a  crime,  and  prohibiting  the  same.  Criminal  prosecutions  are  conducted 
in  Wyoming  in  the  name  of  the  State.  The  prosecuting  officer  is  a  mere 
agent  of  the  State,  which  is  the  real  plaintiff  in  every  criminal  proceeding. 
We  have  therefore  in  this  case  the  strange  anomaly  of  a  court  of  equity 
being  asked  to  issue  an  order  of  injunction  to  restrain  the  State  from 
exercising  one  of  its  highest  prerogatives  in  the  maintenance  of  govern- 
ment. Courts  of  equity  possess  no  such  power.  To  hold  that  they  do 
•would  be  to  invest  them  with  power  to  restrain  and  paralyze  the  operation 
of  the  government  itself  in  all  its  functions  and  departments.  If  a  court 
of  equity  were  to  assume  jurisdiction  of  the  case  at  bar  and  try  the 
issues  involved,  it  would  be  equivalent  to  a  trial  of  the  criminal  action 
here  sought  to  be  restrained.  The  guilt  or  innocence  of  the  plaintiff 
would  be  the  fundamental  question  for  the  court  to  determine,  and,  as 
bearing  upon  this  feature  of  the  case,  the  court  would  have  to  pass  upon 
the  constitutionality  of  the  law  under  which  the  criminal  proceedings 
were  instituted,  and  the  validity  of  the  ordinance  under  which  licenses 
were  granted  to  the  plaintiff.  These  are  proper  matters  of  defense  in  the 
criminal  proceedings.  Under  our  system  of  jurisprudence,  criminal 
actions  can  only  be  tried  by  a  jury,  while  the  trial  of  actions  in  equity 
have  always  been  reposed  in  the  court,  and  have  never  been  the  proper 
subject  of  reference  to  a  jury.  Neither  the  criminal  actions  against 
the  plaintiff  nor  the  infirmities  of  the  statute,  if  any  there  be,  can  be  law- 
fully determined  in  this  proceeding.  16  Am.  &  Eng.  Enc.  Law,  p.  370, 
and  cases  there  collected;  Crighton  v.  Dahmer,  70  Miss.  G02;  21  L.  R.  A. 
84;  35  Am.  St.  Rep.  6G6;  13  So.  237;  Suess  v.  Noble,  31  Fed.  855;  Re 
Sawyer,  124  U.  S.  200 ;  31  L.  ed.  402 ;  8  Sup.  Ct.  Rep.  482 ;  Portis  v.  Fall, 
34  Ark.  375 ;  High,  Inj.  §  68 ;  Foyer  v.  Des  Plaines,  123  HI.  Ill,  5  Am.  St. 
Rep.  494;  13  N.  E.  819 ;  Phillips  v.  Stone  Mountain,  61  Ga.  386.  In  Suess 
V.  Noble,  supra,  Love,  District  Judge,  said :  "Public  offenses  are  prose- 
cuted in  England  in  the  name  of  the  King,  and  in  the  United  States  in 
the  name  of  the  State.  It  is  manifest  that  neither  the  King  nor  the  State 
could  be  made  a  defendant  to  a  bill  in  equity.  The  restraining  power  of 
the  court  would  be  futile  as  against  them;  and  it  would  avail  nothing 
for  the  court  to  address  its  restraining  process  to  public  and  private 
prosecutors,  even  if  the  power  to  do  so  existed,  since  the  State  would 


220  LITTLETON  v.  BURGESS  [part  u 

constitute  a  contempt  of  court  as  punishable,  not  only  for  the  contempt,, 
but  also  for  the  assault. 

But  it  is  also  urged  that  the  law  is  invalid  for  the  reason  that  it  gives 
the  right  to  bring  the  action  to  any  citizen  of  the  State.  We  think  this, 
objection  was  well  answered  in  the  case  of  Littleton  v.  Fritz,  65  Iowa, 
488;  22  N.  W.  641;  54  Am.  Rep.  19  where  the  same  point  was  made 
as  to  a  similar  statute.  There  the  court  say :  "There  can  be  no  doubt 
that  it  is  within  the  power  of  the  Legislature  to  designate  the  person 
or  class  of  persons  who  may  maintain  actions  to  restrain  and  abate 
public  nuisances,  and  when  that  is  done  the  action  is  for  all  purposes 
an  action  instituted  in  behalf  of  the  public  the  same  as  though  brought 
by  the  Attorney-General  or  public  prosecutor.  We  are  strongly  inclined 
to  think  that  in  this  case  a  decree  for  the  defendant  would  be  a  bar  to  any 
other  like  action  for  an  injunction  upon  evidence  of  sales  of  liquor  within 
the  same  time  as  is  embraced  in  this  action.  The  plaintiff  is  by  law 
made  the  representative  of  the  public  in  bringing  and  maintaining  the 
action."  See,  also,  Carleton  v.  Rugg,  149  Mass.  550 ;  22  N.  E.  55 ;  5.  L.  R. 
A.  193;  14  Am.  St.  Rep.  446;  Mugler  v.  Kansas,  123  IT.  S.  623;  8  Sup. 
Ct.  273 ;  31  L.  Ed.  205 ;  State  v.  Crawford,  28  Kan.  726 ;  42  Am.  Rep.  182. 

It  is  also  urged  in  argument  in  a  somewhat  indefinite  way  that  the 
enjoining  of  crimes  or  public  nuisances  were  unknown  to  the  common 
law  and  that  therefore  the  Legislature  was  without  power  to  provide 
for  such  injunction.  This  involves  the  question  whether  the  procedure 
provided  for  in  the  act  is  "due  course  of  the  law  of  the  land."  This 
question  has  been  answered  by  the  Supreme  Court  of  the  United  States 
in  the  case  of  Mugler  v.  Kansas,  123  U.  S.  623 ;  8  Sup.  Ct.  273 ;  31  L.  Ed. 
205.  There  the  court  say:  "Equally  untenable  is  the  proposition  that 
proceedings  in  equity  for  the  purposes  indicated  in  the  thirteenth  section 
of  the  statute  are  inconsistent  with  due  process  of  law.  'In  regard  to 
public  nuisances,'  Mr.  Justice  Story  says,  'the  jurisdiction  of  courts  of 
equity  seems  to  be  of  a  very  ancient  date,  and  has  been  distinctly  traced 
back  to  the  reign  of  Queen  Elizabeth.  The  jurisdiction  is  applicable 
not  only  to  public  nuisances,  strictly  so  called,  but  also  to  purpresture& 
upon  public  rights  and  property.  ...  In  case  of  public  nuisances, 
properly  so  called,  an  indictment  lies  to  abate  them  and  to  punish  the 
offenders.  But  an  information,  also,  lies  in  equity  to  redress  the  griev- 
ance by  way  of  injunction.'  2  Story's  Eq.  §§  921,  922.  The  ground  of 
this  jurisdiction  in  cases  of  purprestures,  as  well  as  of  public  nuisances, 
is  the  ability  of  courts  of  equity  to  give  a  more  speedy,  effectual  and 
permanent  remedy  than  can  be  had  at  law.  They  cannot  only  prevent 
nuisances  that  are  threatened,  and  before  irreparable  mischief  ensues, 
but  arrest  or  abate  those  in  progress;  and,  by  perpetual  injunction,  pro- 
tect the  pul)lic  against  them  in  the  future;  whereas  courts  of  law  can 
only  reach  existing  nuisances,  leaving  future  acts  to  be  the  subject  of 
new  prosecutions  or  proceedings.  This  is  a  salutary  jurisdiction,  es- 
I)ccially   where  a  nuisance  affects   the  health,  morals  or  safety  of  the 


-CHAP.  IV.]  LITTLETON   v.  BURGESS  221 

community.  Though  not  frequently  exercised,  the  power  undoubtedly 
exists  in  courts  of  equity  thus  to  protect  the  public  against  injury."  If 
it  be  asserted  that  the  procedure  for  the  prevention  of  crime  is  novel  and 
unknown  to  the  common  law,  the  answer  is  obvious.  It  seems  that  from 
the  days  of  Edward  the  Confessor  it  was  competent  for  any  subject  of 
the  realm  of  England  to  cause  an^  person  to  be  brought  before  a  magis- 
trate, and  to  compel  him  to  enter  into  an  obligation  with  sureties  to 
keep  the  peace,  not  only  as  against  the  complaining  party,  but  also  as 
against  all  persons  in  general.  4  Blackstone,  Com.  251.  Besides,  the 
whole  of  title  3  of  our  Code  of  Criminal  Procedure  of  1895  is  devoted 
to  the  means  for  the  prevention  of  crime,  and  provides  very  much  of  the 
same  remedies  as  were  allowed  at  common  law.  Such  being  the  facts, 
we  fail  to  see  that  there  is  any  peculiarity  about  the  writ  of  injunction, 
or  any  peculiar  sanctity  about  criminal  or  quasi  criminal  acts,  which 
•can  debar  the  Legislature  from  providing  that  one  may  be  enjoined  by  a 
suit  in  equity,  from  establishing  a  public  nuisance  such  as  a  gaming 
house. 

We  deem  it  unnecessary  to  pursue  this  discussion  further.  The  prin- 
cipal objections  urged  against  the  validity  of  the  act  have  been  fully  and 
ably  discussed  in  the  cases  of  Mugler  v.  Kansas,  Littleton  v.  Fritz,  and 
Carleton  v.  Rugg,  previously  cited,  and  in  all  of  which  the  validity  of 
similar  statutes  was  upheld.  See,  also.  State  v.  Saunders,  66  N.  H.  39, 
35  Atl.  588;  18  L.  R.  A.  646,  in  which  the  main  question  is  exhaust- 
ively discussed  in  an  opinion  characteristic  of  that  eminent  court.  In 
this  same  case  upon  a  writ  of  habeas  corpus  sued  out  by  this  relator 
before  our  Court  of  Criminal  Appeals,  90  S.  W.  492,  that  court  main- 
tained the  constitutionality  of  the  act  in  question  and  remanded  the 
relator  to  the  custody  of  the  sheriff.  That  court  within  its  jurisdiction  is 
■a  court  of  equal  dignity  and  authority  with  this  court.  Courts  will  not 
<lec]are  an  act  of  the  Legislature  invalid  as  being  in  conflict  with  the 
Constitution  unless  it  appear  to  them  to  be  clearly  so.  For  a  stronger 
reason  they  should  not  so  declare  where  the  validity  of  the  statute  has 
been  upheld  by  another  court  of  last  resort.  In  the  application  for  the 
writ  in  this  case  the  fact  that  a  previous  writ  had  been  sued  out  from  the 
Court  of  Criminal  Appeals  and  that  the  relator  had  been  remanded 
appears  upon  the  face  of  the  petition.  An  exception  was  interposed  by 
the  respondent  upon  the  ground  that  under  our  statutes  the  relator 
"was  not  entitled  to  a  second  writ  of  habeas  corpus.  A  majority  of  the 
court  are  inclined  to  think  the  objection  well  taken ;  but  to  this  proposi- 
tion Mr.  Justice  Williams  is  not  prepared  to  accede.  The  decision  of 
the  question  not  being  necessary  to  a  determination  of  the  case,  we  ex- 
press no  opinion  upon  it. 

The  prisoner  is  remanded  to  the  custody  of  the  sheriff  of  McLennan 
County. 


222  EX  PARTE  ALLISON  [part  i. 


EX  PARTE  ALLISON. 

In  the  Supreme  Court  of  Texas,  1906. 

[90  Southwestern  Reporter  870.] 

Gaixes,  C.J.  This  is  a  petition  for  the  writ  of  habeas  corpus,  by  which 
the  relator  seeks  to  have  himself  enlarged  from  the  custody  of  the 
sheriff  of  McLennan  county  and  restored  to  his  liberty.  It  appears 
from  the  pleadings  and  exhibits  in  this  court  that  one  Minor  Moore, 
a  citizen  of  McLennan  County,  obtained  from  the  judge  of  the  Eighteenth 
judicial  district  a  temporary  writ  of  injunction  against  the  relator, 
restraining  him  from  the  use  of  certain  premises  in  the  city  of  Waco 
for  the  purposes  of  gaming  or  of  keeping  and  exhibiting  games  prohibited 
by  law.  By  order  of  the  judge  granting  the  writ  the  petition  was  returned 
to  one  of  the  district  courts  of  McLennan  County  and  filed  with  the 
clerk  thereof.  Upon  the  final  hearing  in  the  latter  court  the  injunction 
was  made  perpetual.  Upon  an  affidavit  filed  by  the  plaintiff  in  the  suit 
alleging  that  respondent  had  violated  the  injunction  .he  was  attached 
for  contempt  and  upon  the  hearing  was  adjudged  guilty  and  fined  $100. 
Upon  default  of  payment  of  the  fine  he  was  placed  in  the  custody  of  the 
sheriff  of  the  county,  the  respondent  in  the  present  suit. 

The  statute  under  which  the  original  proceeding  was  instituted  was 
passed  by  the  regular  session  of  the  present  Legislature,  and  we  quote 
so  much  of  it  as  we  deem  necessary  for  the  purposes  of  this  opinion : 

"  Section  1.  The  habitual  use,  actual,  threatened,  or  contemplated 
use  of  any  premises,  place,  building,  or  part  thereof,  for  the 
purpose  of  gaming  or  of  keeping  or  of  exhibiting  games  prohibited  by  the 
laws  of  this  State  shall  be  enjoined  at  the  suit  either  of  the  State  or  of 
any  citizen  thereof.  Any  person  who  may  so  use  or  who  may  be  about  to 
use  or  who  may  aid  or  abet  any  other  person  in  the  use  of  any  premises, 
place  or  building,  or  part  thereof,  may  be  made  a  party  defendant  in 
such  suit. 

"  Sec.  2.  .  .  .  And  provided  further,  that  nothing  in  the  above  pro- 
viso contained  shall  prevent  such  injunction  from  issuing  at  the  suit 
of  any  citizen  of  this  State  who  may  sue  in  his  own  name,  and  such 
citizen  shall  not  be  required  to  show  that  he  is  personally  injured  by  the 
acts  complained  of."     Acts  1905,  29th  Leg.,  p.  372,  c.  153. 

The  validity  of  this  statute  is  assailed  by  counsel  for  the  relator  upon 
several  grounds ;  but  we  are  of  the  opinion  that  none  of  them  are  well 
taken.  The  first  question  in  logical  order,  as  we  think,  is  whether  the 
c-jii)tion  of  the  act  is  sufficiently  full  to  meet  the  requirements  of  section 
'.',r>  of  article  3  of  our  Constitution.  The  title  in  question  is  as  follows: 
"An  act  to  prevent  by  means  of  the  writ  of  injunction  at  the  suit  of 


CHAP.  IV.]  E:^  PAETE  ALLISON  22;; 

the  State  or  any  citizen  thereof  the  habitual  use,  actual,  contemplated 
or  threatened,  of  any  premises,  place,  building  or  part  thereof,  for  the 
purpose  of  gaming  or  of  keeping  or  exhibiting  games  prohibited  by  the 
laws  of  this  State."  This  title  in  our  opinion  very  clearly  and  fully  ex- 
presses the  one  subject  of  the  act,  and  is  therefore  sufficient  in  that 
respect  to  sustain  the  statute. 

It  is  also  insisted  on  behalf  of  the  relator  that  the  Legislature  has  no 
power  to  confer  upon  the  courts  the  authority  to  enjoin  the  commission 
of  crime  or  the  establishment  or  continuance  of  a  public  nuisance.  The 
Legislature,  when  not  restrained  by  the  Constitution  of  the  State  or  of 
that  of  the  United  States,  has  the  power  to  make  law  and  to  provide  reme- 
dies for  its  enforcement.  We  find  no  express  provision  in  either  of  these 
instruments  which  prohibits  the  lawmaking  from  either  extending 
or  abridging  equitable  remedies.  The  main  argument  against  the 
power  the  Legislature  has  attempted  to  exercise  by  the  passage  of  the 
act  in  question  is  that  it  deprives  the  defendant  in  the  action  of  the 
right  of  trial  by  jury,  and  therefore  violates  the  provision  of  our  Bill  of 
Rights  which  declares  that  "  the  right  of  trial  by  jury  shall  remain 
inviolate."  This  may  present  a  serious  difficulty  in  those  jurisdictions 
in  which,  as  at  common  law,  legal  and  equitable  remedies  were  kept 
distinct  and  administered  in  separate  courts.  In  courts  of  law  the 
parties  are  entitled  to  have  the  issues  of  fact  determined  by  a  jury,  which 
is  not  the  case  in  a  court  of  equity.  Hence  it  might  be  that  in  such 
jurisdictions  a  statute  which  attempted  to  confer  upon  a  court  of  equity 
the  power  to  try  a  cause  which  was  previously  cognizable  in  a  court 
of  law  would  be  held  obnoxious  to  the  objection  that  it  deprived  the 
parties  of  the  right  of  trial  by  jury.  But  under  our  system,  in  which 
law  and  equity  are  blended  and  the  right  of  trial  by  jury  exists,  whether 
the  remedy  be  legal  or  equitable,  the  difficulty  vanishes.  Before  the 
injunction  could  be  made  perpetual  under  the  statute  in  question  it  is 
the  right  of  the  defendant  to  have  the  jury  pass  upon  the  facts.  It  is 
true  that  in  case  of  a  violation  of  the  injunction  there  is  in  the  contempt 
proceedings  no  trial  by  jury;  but  no  such  right  exists  at  common  law  in 
proceedings  for  contempt.  Hence  that  does  not  contravene  the  provision 
which  declares  that  "the  right  of  trial  by  jury  shall  remain  inviolate." 
That  provision  merely  protects  the  right  as  it  existed  at  the  time  the 
Constitution  went  into  effect. 

Nor  do  we  think  that  the  act  in  question  infringes  that  provision  of  the 
Bill  of  Rights  which  declares  that  "no  person  for  the  same  offense,  shall 
be  twice  put  in  jeopardy  of  life  or  liberty."  It  is  true  that,  if  he  com- 
mits the  act  which  he  is  enjoined  from  committing  and  such  act  be  a 
violation  of  the  penal  laws  of  the  State,  he  may  under  this  statute 
be  punished  for  the  contempt  and  also  for  the  violation  of  the  criminal 
law.  But  these  are  not  "the  same  offense."  In  the  former  case  he  is 
punished  for  a  violation  of  the  orders  of  the  court;  and  in  the  latter 
for  an  offense  'Against  the  peace  and  dignity  of  the  State."     One  who 


224  EX  PAKTE  ALLISON  [part  i. 

makes  an  assault  in  the  presence  of  the  court  in  such  a  manner  as  to 
readily  find  other  agents  to  represent  it  in  the  criminal  proceeding. 
Courts  of  equity,  therefore,  deal  only  with  civil  and  property  rights. 
They  have  no  jurisdiction  to  give  relief  in  criminal  cases,  and  they  will 
not  therefore  interfere  by  injunction  with  the  course  of  criminal 
justice."  Mr.  Justice  Gray,  delivering  the  opinion  in  Re  Sawyer,  supra, 
said:  "The  office  and  jurisdiction  of  a  court  of  equity,  unless  enlarged  by 
express  statute,  are  limited  to  the  protection  of  rights  of  property.  It  has 
no  jurisdiction  over  the  prosecution,  the  punishment,  or  the  pardon  of 
crimes  or  misdemeanors,  or  over  the  appointment  and  removal  of  public 
officers.  To  assume  such  a  jurisdiction,  or  to  sustain  a  bill  in  equity  to 
restrain  or  relieve  against  proceedings  for  the  punishment  of  offenses, 
or  for  the  removal  of  public  officers,  is  to  invade  the  domain  of  the  courts 
of  common  law,  or  of  the  executive  and  administrative  department  of  the 
government." 

It  is  contended,  however,  that  equity  will  intervene  to  restrain  a  crimi- 
nal prosecution  under  a  void  statute.  Let  it  be  conceded.  But  it  will  not 
try  the  validity  of  the  statute,  and  will  not  interfere  until  the  statute 
has  been  declared  void  in  the  proper  legal  tribunal.  In  Poyer  v.  Des 
Plaines,  supra,  the  court  said :  "The  questions  arising  in  the  prosecution 
sought  to  be  enjoined  can  be  determined  in  the  tribunal  in  which  they 
are  pending,  or  in  that  to  which  they  may  be  taken  by  appeal.  The 
legality  or  illegality  of  the  ordinance  is  purely  a  question  of  law,  which 
the  common  law  court  is  competent  to  decide.  If  the  defendant  is  not 
guilty  of  violating  this  provision,  as  alleged,  the  determination  of  that 
fact  is  peculiarly  within  the  province  of  that  court.  In  either  event, 
appellant  had  a  full  and  complete  defense  at  law."  In  the  same  case,  it 
is  further  held :  "If  the  municipal  law  be  of  doubtful  validity,  the  com- 
plainant cannot,  by  his  wilful  and  repeated  violation  of  its  provisions, 
each  furnishing  separate  grounds  for  prosecution,  and  depending  upon 
separate  facts,  create  this  ground  for  equitable  interposition  without 
first  settling  the  validity  of  the  ordinance  in  the  courts  of  law.  If  he 
fears  the  prosecution  of  other  suits,  he  can  refrain  from  the  repetition  of 
his  acts  in  violation  of  its  provisions  until  the  proper  forum  has  deter- 
mined its  validity."  In  West  v.  New  York,  10  Paige,  539,  Chancellor 
Walworth,  in  delivering  the  opinion  of  the  court,  says:  "The  question 
as  to  the  validity  of  the  corporation  ordinances  does  not  proi)erly  belong 
to  this  court  for  decision,  where  the  complainants,  as  in  this  case,  have  a 
perfect  defense  at  law,  if  the  ordinances  are  invalid,  or  if  they  do  not 
render  the  complainants,  or  those  in  their  employ,  liable  for  the  penalty. 
And  it  would  be  an  usurpation  of  jurisdiction  by  this  court  if  it  should 
draw  to  itself  the  settlement  of  such  questions,  when  their  decision  was 
iK)t  necessary  in  th(i  discharge  of  the  legitimate  duties  of  the  court." 
In  Phillii)s  V.  Stone;  Mountain,  supra,  where  it  was  sought  to  restrain  the 
municipal  ;nilli<>ril  ifs  of  the  town  of  Stone  Mountain,  Georgia,  from 
prosecuting  the  i)laiiitiff  for  the  violation  of  an  ordinance  rocpiiring  retail 


CHAP.  IV.]  EX  PAKTE  ALLISON  225 

liquor  dealers  to  close  their  places  of  business  during  the  continuance  of 
divine  services,  and  alleging  the  invalidity  of  the  ordinance,  the  court 
said:  "Injunctions  or  orders  in  the  nature  of  injunction  are  not  granted 
by  courts  of  equity  to  restrain  proceedings  in  criminal  matters.  .  .  . 
For  this  reason,  whatever  may  be  the  infirmities  of  the  penal  ordinances 
of  Stone  Mountain,  an  injunction  in  the  present  case  was  properly  denied. 
If  unlawful  convictions  take  place  before  a  municipal  court,  reversal  can 
be  had  in  the  superior  court,  as  a  court  of  law,  by  certiorari.  (This  is  a 
plain  and  adequate  remedy,  and  a  court  of  equity  need  not  and  cannot 
interfere.  Chancery  takes  no  part  in  the  administration  of  criminal 
law.  It  neither  aids  the  criminal  courts  in  the  exercise  of  jurisdiction, 
nor  restrains  nor  obstructs  them."  We  are  of  the  opinion  that  the 
plaintiff  has  a  clear  and  adequate  remedy  at  law,  not  only  to  have  the 
question  of  his  guilt  or  innocence  determined,  but  also  the  validity 
of  the  statute  upon  which  the  informations  are  based. 

It  is  contended  that  property  rights  are  here  involved;  and  that  in- 
junction will  lie  to  restrain  a  criminal  prosecution  when  necessary  to 
protect  such  rights.  In  such  cases  equity  intervenes,  if  at  all,  not  in 
restraint  of  the  criminal  proceedings,  but  rather  in  aid  of  the  civil 
jurisdiction  of  the  court.  It  merely  suspends  the  criminal  pro- 
ceedings until  the  property  rights  can  be  determined.  It  does  not 
assume  jurisdiction  of  the  criminal  action.  It  only  prevents  the  criminal 
process  from  interfering  with  the  exercise  of  its  jurisdiction  in  the  civil 
proceeding  under  consideration.  The  only  right  of  the  plaintiff  affected 
is  the  enjoyment  of  the  privileges  afforded  by  the  licenses.  The  per- 
mission granted  by  these  licenses  is  not  a  property  right.  A  license  is 
a  mere  permit  to  do  something  that  without  it  would  be  unlawful.  It  is 
not  a  contract,  nor  does  it  convey  any  vested  right.  It  is  issued  in  the 
exercise  of  the  police  power  of  the  State,  and  may  be  modified,  revoked, 
or  continued  at  its  pleasure.  Statutes  under  which  licenses  have  been 
granted,  may  be  repealed,  and  it  is  held  that  such  repeal  is  not  any  vio- 
lation of  the  constitutional  provision  forbidding  the  enactment  of  laws 
impairing  the  obligations  of  contracts;  nor  does  such  repeal  deprive  the 
licensee  of  his  property  without  due  process  of  law.  17  Am.  &  Eng.  Enc. 
Law,  2d  ed.  p.  262. 

For  the  reasons  above  stated,  the  trial  court  committed  no  error  in 
holding  that  the  temporary  injunction  was  improperly  issued  and  in  sus- 
taining the  demurrer  and  dismissing  the  action. 

The  judgment  is  affirmed. 

Potter,  Ch.J.,  and  Beard,  J.,  concur. 


226  In  re  T.EAD  AND  HUGGONSON  |_i'-^^''T  u 

IN  EE  EEAD  AND  HUGGONSON 

In  Chancery^  before  Lord  Chancellor  Hardwicke,  1742. 

[2  Atl-ijns  469.] 

A  motion  against  the  Printer  of  the  Champion,  and  the  Printer  of  the 
*S'^.  James's  Evening  Post;  that  the  former,  who  is  abeady  in  the  Fleet, 
may  be  committed  close  prisoner ;  and  that  the  other,  who  is  at  large, 
may  be  committed  to  the  Fleet,  for  publishing  a  libel  against  Mr.  Hall 
and  Mr.  Garden,  (executors  of  John  Roach,  Esq.  late  major  of  the  gar- 
rison of  Fo7-t  St.  George,  in  the  East  Indies)  ;  and  for  reflecting  like- 
wise upon  Governor  Mackray,  Governor  Pitt,  and  others,  taxing  them 
with  turning  aifidavit  men,  &c.  in  the  cause  now  depending  in  this  court, 
between  Mrs.  Roach  and  the  executors :  And  insisting  that  the  publishing 
such  a  paper  is  a  high  contempt  of  this  court,  for  which  they  ought  to  be 
committed. 

Lord  Chancellor, 

Nothing  is  more  incumbent  upon  courts  of  justice,  th^n  to  preserve 
their  proceedings  from  being  misrepresented ;  nor  is  there  anything  of 
more  pernicious  consequence,  than  to  prejudice  the  minds  of  the  public 
against  persons  concerned  as  parties  in  causes,  before  the  cause  is  finally 
heard. 

It  has  always  been  my  opinion,  as  well  as  the  opinion  of  those  who 
have  sate  here  before  me,  that  such  a  proceeding  ought  to  be  discoun- 
tenanced. 

But,  to  be  sure,  Mr.  Solicitor  General  has  put  it  upon  the  right  foot- 
ing, that  notwithstanding  this  should  be  a  libel,  yet,  unless  it  is  a  con- 
tempt of  the  court,  I  have  no  cognizance  of  it:  For  whether  it  is  a  libel 
against  the  public  or  private  persons,  the  only  method  is  to  proceed  at 
law. 

The  defendant's  counsel  have  endeavoured  two  things:  1st,  To  show 
this  paper  does  not  contain  defamatory  matter.  2dly,  If  it  does,  yet 
there  is  no  abuse  upon  the  proceedings  of  this  court,  and  therefore  there 
is  no  room  for  me  to  interpose. 

Now,  take  the  whole  together,  though  the  latter  is  artfully  penned, 
there  can  remain  no  doubt,  in  every  common  reader  at  a  coffee-bouse, 
but  this  is  a  defamatory  libel. 

There  are  three  different  sorts  of  contempt. 

One  kind  of  contempt  is,  scandalizing  the  court  itself. 

There  may  be  likewise  a  contempt  of  this  court,  in  abusing  parties  who 
are  conceriuHl  in  causes  here. 

There  may  be  also  a  contempt  of  this  court,  in  prejudicing  mankind, 
against  persons,  before  the  cause  is  heard. 


CHAP.  iv.J  In  re  READ  AND  HUGGONSON  227 

There  cannot  be  any  thing  of  greater  consequence,  than  to  keep  tlie 
streams  of  justice  clear  and  pure,  that  parties  may  proceed  with  safety 
both  to  themselves  and  their  characters. 

The  case  of  Rakes,  the  Printer  of  the  Gloucester  Journal,  who  pub- 
lished a  libel,  in  one  of  the  Journals,  against  the  commissioners  of 
charitable  uses  at  Burford,  calling  his  advertisement.  A  hue  and  cry 
after  a  Commission  of  Charitable  Uses,  was  of  the  same  kind  as  this,  and 
the  court  in  that  case  committed  him. 

There  are  several  other  cases  of  this  kind;  one  strong  instance,  where 
there  was  nothing  reflecting  upon  the  court,  in  the  case  of  Captain 
Perry,  who  printed  his  brief  before  the  cause  came  on;  the  offence  did 
not  consist  in  the  printing,  for  any  man  may  give  a  printed  brief,  as 
well  as  a  written  one,  to  counsel;  but  the  contempt  of  this  court,  was 
prejudicing  the  world  with  regard  to  the  merits  of  the  cause  before  it 
was  heard. 

Upon  the  whole,  there  is  no  doubt,  but  this  is  a  contempt  of  the  court.' 

If  these  printers  had  disclosed  the  name  of  the  persons  who  brought 
this  paper  to  them,  there  might  have  been  something  said  in  mitigation 
of  their  offence;  but  as  they  think  proper  to  conceal  it,  I  must  order 
Mrs.  Read  to  be  committed  to  the  Fleet,  and  Huggonson  to  be  taken  into 
close  custody  of  the  warden  of  the  Fleet. 

'  Parts  of  the  case,  including  a  detailed  discussion  of  the  facts,  have  been 
omitted. 

In  the  case  of  Kitcat  v.  Sharp  (1882)  L.  J.  52  Ch.  Div.  134,  the  plaintiff,  a 
clergyman,  had  purchased  shares  of  stock  from  the  defendant,  a  stock  broker. 
He  filed  his  bill  against  the  defendant,  alleging  false  representations,  and 
asking  relief  by  rescission,  or  in  the  alternative  damages.  The  defendant 
wrote  the  plaintiff  a  letter  containing  comments  reflecting  on  the  plaintiff's 
character.  The  defendant  threatened  to  publish  this,  the  plaintiff  seeks  an 
injunction. 

Fry,  J.  "It  appears  to  me  that  if  the  threat  contained  in  the  letter 
were  carried  into  effect,  it  would  be  calculated  to  interfere  with  the  fair 
trial  of  the  action;  it  would  be  calculated  to  prejudice  the  plaintiff,  and 
render  it  difficult  for  him  to  obtain  justice  if  justice  were  on  his  side.  That 
such  a  course  of  action  is  a  contempt  of  court  I  cannot  entertain  the  slightest 
doubt.  So  long  ago  as  1742  it  was  laid  down  by  Lord  Hardwicke.  in  a  motion 
against  the  printers  of  The  Champion  and  St.  James's  Evening  Post,  2  Atk. 
p.  469  {Case  291),  'that  nothing  is  more  incumbent  on  courts  of  justice  than 
to  preserve  their  proceedings  from  being  misrepresented,  nor  is  there  anything 
of  more  pernicious  consequence  than  to  prejudice  the  minds  of  the  public 
against -persons,  parties  in  causes,  before  the  cause  is  finally  heard.'  Further 
down  in  the  same  case  he  said,  'There  are  three  different  sorts  of  contempt. 
One  is  scandalizing  the  court  itself.  There  may  be  likewise  contempt  of 
court  in  abusing  parties  who  are  concerned  in  causes  here.  There  may  be 
also  a  contempt  of  this  court  in  prejudicing  mankind  against  persons  before 
the  cause  is  heard." 

"It  appears  to  me  that  the  threatened  act  of  the  defendant  would  tend  in 
this  case  to  the  two  latter  species  of  contempt.     It  is  both  abusing  a  party 


228  BEANDRETH  v.  LANCE  [part  i. 

BRANDRETH  v.  LANCE. 
Court  of  Chancery  of  New  York,  1839. 
[8  Paige  24.] 

This  case  came  before  the  court  upon  the  demurrers  of  Lance  and 
Hodges,  two  of  the  defendants,  to  the  complainant's  bill.  The  com- 
plainant was  the  proprietor  and  vender  of  a  nostrum  known  by  the 
name  of  "Brandreth's  Vegetable  Universal  Pills."  And,  as  the  bill 
alleged,  by  advertising  this  medicine  extensively  in  the  public  papers 
in  the  State  of  New  York  and  elsewhere,  and  thus  giving  publicity  to 
it  and  its  general  efficacy  in  the  cure  of  diseases,  the  complainant  had 
derived  and  was  still  deriving  therefrom  a  comfortable  support  for  him- 
self and  his  family.  The  complainant  also  alleged  that  for  the  pur- 
concerned  and  prejudicing  mankind  before  the  cause  is  heard.  It  appears  to 
me,  therefore,  clearly  that  there  would  be  contempt  of  court. 

"If  so,  there  arises  the  question  whether  I  ought  to  stop  that  course  of  ac- 
tion, or  whether  the  only  proper  course  would  be,  as  is  contended  by  his 
counsel,  to  imprison  him  for  contempt  when  committed.  It  appears  to  me  I 
have  plainly  jurisdiction  to  prevent  the  threatened  conduct.  Only  observe 
what  would  be  the  effect  if  I  had  not  the  jurisdiction.  It  would  be  that 
the  court,  seeing  that  a  fair  trial  is  likely  to  be  interfered  with  by  a  con- 
tempt of  court,  would  be  powerless  to  prevent  such  contempt,  and  powerless 
to  prevent  the  fair  trial  from  being  interfered  with.  It  might  be  so  because 
there  might  be  a  decision  to  that  effect  binding  on  me;  but  there  is  nothing 
of  the  sort ;  and  in  the  next  place  nothing  is  more  familiar  than  cases 
where  the  court  does  interfere  to  prevent  a  threatened  contempt  of  court. 
The  case  to  which  ]\Ir.  Beaumont  has  referred,  with  respect  to  wards  of  court, 
is  an  exercise  of  that  jurisdiction  against  persons  not  even  parties  to  the 
action  or  cause.  Lastly,  if  authority  were  wanted  for  the  exercise  of  the 
jurisdiction  in  this  very  way,  there  is  the  case  that  has  been  cited  of  Coleman 
V.  The  West  Hartlepool  Railway  Company,  in  which  the  Vice-Chancellor,  Sir 
William  Page  Wood,  restrained  publication. 

"Against  that  no  single  case  has  been  brought,  though  Mr.  Beaumont  has 
argued  the  case  with  his  usual  ability  and  industry.  I  hold,  therefore,  that 
I  have  tlie  jurisdiction  and  the  obligation  in  the  present  case  to  restrain  the 
publication." 

And  see  the  case  of  Dailey  v.  Superior  Court  (189G)  112  Cal.  94.  The  plain- 
tiff here  advertised,  while  the  jury  was  being  impanelled  in  the  celebrated 
Durrant  case,  that  he  would  produce  ?t  a  certain  theatre  in  San  Francisco  a 
[i!;ty  entitled  "The  Crime  of  a  Century."  The  play  was  founded  on  the  evidence 
hii)ii;.'ht  out  at  Durrant's  preliminary  hearing.  Durrant  applied  for  and  re- 
ceived an  injunction.  From  this  the  petitioner  here,  defendant  below,  brought 
a  writ  of  Certiorari.  The  upper  court  annuled  the  order,  on  the  ground  that 
it  interfered  with  lil)erty  of  speech. 


CHAP.  IV.]  BKANDRETH  v.  LANCE  229 

pose  of  vending  his  pills  he  had  been  in  the  habit  of  keeping  various 
ofSces,  and  of  employing  many  agents  and  clerks;  that  among  others 
he  had  employed  the  defendant.  Lance,  but  had  been  obliged  to  dis- 
charge him  for  improper  conduct;  that  in  consequence  of  being  thus 
discharged,  Lance  became  very  much  enraged  and  vowed  revenge,  and 
threatened  to  destroy  the  complainant ;  and  that  he  thereupon  opened 
a  rival  establishment  for  the  purpose  of  vending  medicine  or  pills  in 
the  city  of  New  York.  The  complainant  further  charged  in  his  bill, 
that  a  short  time  previous  to  the  filing  thereof  ho  had  been  spoken  to 
by  the  defendant  Trust,  and  informed  that  Lance  had  applied  to  him 
to  write  the  complainant's  life,  and  that  he  was  inclined  to  do  so,  but 
would  relinquish  the  undertaking  for  a  bonus  of  $50;  that  the  com- 
plainant spurned  the  offer,  and  bade  Trust  not  to  presume  to  repeat 
such  a  proposition,  and  that  shortly  thereafter,  and  previous  to  the 
filing  of  the  bill,  the  complainant  received  a  printed  sheet,  enclosed 
to  him  in  a  letter,  containing  the  title-page  and  preface  and  two 
other  pages  of  a  work  or  pamphlet  entitled  "The  Life,  Exploits,  Comi- 
cal Adventures  and  Amorous  Intrigues  of  Benjamin  Brandling,  M.D. 
V.P.L.V.S.,  a  distinguished  pill  vender,  written  by  himself;  inter- 
spersed with  racy  descriptions  of  scenes  of  life  in  London  and  New 
York";  which  work,  by  the  title-page,  purported  to  be  printed  at  New 
York,  by  D.  M.  Hodges,  for  the  proprietors,  and  to  be  had  of  all  the 
booksellers.  The  residue  of  this  first  sheet  of  the  work,  which  was  set 
out  at  length  in  the  bill,  contained  a  ludicrous  preface  in  which  the 
complainant  was  represented  as  avowing  his  object  in  raking  up  and 
publishing  all  the  vices  and  follies  of  his  youth,  to  be  for  the  double 
purpose  of  amusing  himself  and  as  a  warning  to  others  to  avoid  them. 
And  the  table  of  contents  represented  him  as  being  filius  nullius,  or 
rather  as  being  filius  -populi,  the  child  of  many  fathers,  and  as  having 
passed  through  the  various  and  successive  grades  of  sailor,  confectioner, 
painter,  brass  founder,  peddler,  jeweler,  bagman  to  a  pill  vender,  money 
broker,  author,  poet,  and  dramatist;  until  he  had  risen  to  the  rank  of 
a  wholesale  manufacturer  of  that  rare  medicine,  upon  which  the  smiles 
of  fortune  had  been  so  freely  bestowed.  The  complainant  further 
charged  that  the  before-mentioned  book,  or  pamphlet,  was  then  actually 
printing  by  the  defendant,  Hodges,  for  Lance,  and  under  the  direction 
and  superintendence  of  the  defendant,  Trust,  who  was  the  author  of  the 
work;  that  the  same,  so  far  as  appeared  by  the  printed  sheet  set  out  in 
the  bill,  was  a  false,  malicious,  and  highly  injurious  libel  upon  the 
complainant,  and  was  intended  to  libel  him  and  to  bring  him  into  public 
disgrace  and  contempt;  although  in  the  title-page  the  person  whose 
life  it  purported  to  be  was  called  Benjamin  Brandling  instead  of  Bran- 
dreth,  his  real  name;  and  that  the  defendants  were  printing  the  work, 
and  causing  it  to  be  printed  for  the  purpose  and  with  the  intent  of 
publishing  the  same  and  causing  it  to  be  widely  distributed  through- 
out the  country.     He  therefore  prayed  for  a  perpetual  injunction  re- 


230  BKANDEEIH  v.  LANCE  [part  i. 

straining  the  defendants  from  printing  or  publishing  such  book  or 
pamphlet,  or  the  contents  thereof,  or  any  part  thereof;  and  that  they 
might  be  decreed  to  deliver  up  the  manuscript  of  the  work,  and  all  and 
every  copy  thereof,  or  of  any  part  of  the  same  printed  by  them,  or 
either  of  them,  to  be  cancelled  and  destroyed;  and  for  such  further  or 
other  relief  as  he  might  be  entitled  to  in  the  premises.  To  this  bill 
the  defendants,  Lance  and  Hodges,  put  in  a  separate  demurrer,  both  as 
to  the  discovery  and  relief  sought. 

The  CHA^X'ELLOR  [Walworth].  It  is  very  evident  that  this  court 
cannot  assume  jurisdiction  of  the  case  presented  by  the  complainant's 
bill,  or  of  any  other  case  of  the  like  nature,  without  infringing  upon 
the  liberty  of  the  press,  and  attempting  to  exercise  a  power  of  preventive 
justice  which,  as  the  legislature  has  decided,  cannot  safely  be  entrusted 
to  any  tribunal  consistently  with  the  principles  of  a  free  government. 
2  R.  S.  737,  §  1,  and  Revisers'  note.  This  bill  presents  the  sim- 
ple case  of  an  application  to  the  court  of  chancery  to  restrain  the 
publication  of  a  pamphlet  which  purports  to  be  a  literary  work,  un- 
doubtedly a  tale  of  fiction,  on  the  ground  that  it  is  intended  as  a  libel 
upon  the  complainant.  The  court  of  star  chamber  in  England,  once 
exercised  the  power  of  cutting  off  the  ears,  branding  the  foreheads,  and 
slitting  the  noses  of  the  libellers  of  important  personages.  Hudson's  Star 
Chamber,  2  Collect.  Jurid.  224.  And  as  an  incident  to  such  a  jurisdic- 
tion, that  court  was  undoubtedly  in  the  habit  of  restraining  the  pub- 
lication of  such  libels  by  injunction.  Since  that  court  was  abolished, 
however,  I  believe  there  is  but  one  case  upon  record  in  which  any  court, 
either  in  this  country  or  in  England,  has  attempted,  by  an  injunction 
or  order  of  the  court,  to  prohibit  or  restrain  the  publication  of  a  libel, 
as  such,  in  anticipation.  In  the  ease  to  which  I  allude,  the  notorious 
Scroggs,  chief  justice  of  the  court  of  king's  bench,  and  his  associates, 
decided  that  they  might  be  safely  entrusted  with  the  power  of  prohib- 
iting and  suppressing  such  publications  as  they  might  deem  to  be  libel- 
lous. They  accordingly  made  an  order  of  the  court  prohibiting  any 
person  from  printing  or  publishing  a  periodical,  entitled  "The  Weekly 
Packet  of  Advice  from  Kome,  or  the  History  of  Popery."  The  House 
of  Commons,  however,  considered  this  extraordinary  exercise  of  power 
on  the  part  of  Scroggs  as  a  proper  subject  of  impeachment.  8  Howell's 
State  Trials,  198.  And  I  believe  no  judge  or  chancellor  from  that  time 
to  the  present  has  attempted  to  follow  that  precedent.  There  is,  indeed, 
in  the  rei)orted  case  of  Du  Post  v.  Beresford,  2  Camp.  Rep.  511,  which 
was  an  action  of  trespass  against  the  defendant  for  destroying  a  libel- 
lf>us  picture,  a  most  extraordinary  declaration  of  Lord  EUenborough, 
ihat  the  Lord  Chancellor,  upon  an  application  to  him,  would  have 
^Tanted  an  injunction  against  the  exhibition  of  the  libellous  painting. 
It  is  said,  however,  in  a  note  to  Home's  case,  in  the  state  trials,  that 
this  declaration  of  Lord  EUenborough,  in  relalicMi  to  the  power  of  the 
I.oi.l  Chaiic(;llor  to  restrain  the  publication  of  a  libel  by  injunction,  ex- 


CHAP.  IV.]  BRANDRETII  v.  LANCE  231 

cited  great  astonishment  in  the  minds  of  all  the  practitioners  in  the 
courts  of  equity.  20  Howell's  St.  Tr.  799.  It  must  unquestionably  be 
considered  as  a  hasty  declaration,  made  without  reflection  during  the 
progress  of  a  trial  at  nisi  prius;  and  as  such  it  is  not  entitled  to  any 
weight  whatever. 

The  utmost  extent  to  which  the  court  of  chancery  has  ever  gone  in 
restraining  any  publication  by  injunction,  has  been  upon  the  principle 
of  protecting  the  rights  of  property.  Upon  this  principle  alone  Lord 
Eldon  placed  his  decision,  in  the  case  of  Gee  v.  Pritchard,  2  Swanst.  Kep. 
403,  continuing  the  injunction  which  restrained  the  defendant  from 
publishing  copies  of  certain  letters  written  to  him  by  the  complainant. 
But  it  may,  perhaps,  be  doubted  whether  his  lordship  in  that  case  did 
not,  to  some  extent,  endanger  the  freedom  of  the  press  by  assuming  jur- 
isdiction of  the  case  as  a  matter  of  property  merely,  when  in  fact  the 
object  of  the  complainant's  bill  was  not  to  prevent  the  publication  of 
her  letters  on  account  of  any  supposed  interest  she  had  in  them  as 
literary  property,  but  to  restrain  the  publication  of  a  private  corre- 
spondence, as  a  matter  of  feeling  only.  His  decision  in  that  case  has, 
however,  as  I  see,  received  the  unqualified  approbation  of  the  learned 
American  commentator  on  equity  jurisprudence.  See  2  Story's  Eq.  222, 
§  94S. 

In  this  case  the  complainant  does  not  claim  the  exercise  of  the  ex- 
traordinary jurisdiction  of  this  court  on  the  ground  of  any  violation 
of  the  rights  of  literary  property,  or  because  a  work  is  improperly  at- 
tributed to  him  which  will  be  likely  to  injure  his  reputation  as  an 
author,  or  even  as  a  manufacturer  of  pills.  For  although  his  counsel 
insist  that  it  must  necessarily  have  the  effect  to  injure  the  sale  of  his 
pills,  he  has  not  alleged  in  his  bill  that  he  even  believes  it  will  have 
any  such  effect.  And  in  the  absence  of  such  an  allegation,  I  am  as  a 
matter  of  opinion,  inclined  to  the  belief  that  with  that  class  of  per- 
sons who  would  be  likely  to  buy  and  take  his  "universal  pills,"  as  a 
general  remedy  for  any  and  every  disease  to  which  the  human  body 
is  subject,  the  supposition  that  he  was  the  author  of  the  publication 
in  question,  and  was  also  the  extraordinary  personage  which  this  table 
of  the  contents  of  the  work  indicates,  would  be  very  likely  to  induce 
them  to  purchase  and  use  his  medicine  the  more  readily. 

As  the  publication  of  the  work,  therefore,  which  is  sought  to  be  re- 
strained, cannot  be  considered  as  an  invasion  of  the  rights  either  of 
literary  or  medical  property,  although  it  is  unquestionably  intended  as 
a  gross  libel  upon  the  complainant  personally,  this  court  has  no  juris- 
diction or  authority  to  interfere  for  his  protection.  And  if  the  de- 
fendants i)ersist  in  their  intention  of  giving  this  libellous  production 
to  the  public,  he  must  seek  his  remedy  by  a  civil  suit  in  a  court  of  law; 
or  by  instituting  a  criminal  prosecution,  to  the  end  that  the  libellers, 
upon  conviction,  may  receive  their  appropriate  punishment,  in  the  peni- 
tentiary or  otherwise. 


232  BEANDRETII  v.  LANCE  [part  i. 

The  demurrers  must  be  allowed,  and  the  complainant's  bill  dismissed, 
as  to  these  defendants,  with  costs.' 

^  "The  jurisdiction  of  a  Court  of  Chancery  does  not  extend  to  cases  of  lihel 
or  slander,  or  of  false  representations  as  to  the  character  or  quality  of  the 
plaintiff's  property,  or  as  to  his  title  thereto,  which  involve  no  breach  of 
trust  or  of  contract.  Huggonson's  case,  2  Atk.  469,  488 ;  Gee  p.  Pritchard, 
2  Swanst.  402,  413;  Seeley  v.  Fisher,  11  Sim.  581,  583;  Fleming  v.  Newton, 
1  H.  L.  Cas.  363,  371,  376;  Emperor  of  Austria  v.  Day,  3  De  G.,  F.  &  J.  217, 
238-241;  Mulkern  v.  Ward,  L.  R.  13  Eq.  619.  The  opinions  of  Vice-Chan- 
cellor  !Malins  in  Springhead  Spinning  Co.  v.  Riley,  L.  R.  6  Eq.  551.  In  Dixon 
V.  Holden,  L.  R.  7  Eq.  488,  and  in  Rollins  v.  Hinks,  L.  R.  13  Eq.  355,  appear 
to  us  to  be  so  inconsistent  with  these  authorities  and  with  well-settled  prin- 
ciples, that  it  would  be  superfluous  to  consider  whether,  upon  the  facts  be- 
fore him,  his  decisions  can  be  supported. 

"The  jurisdiction  to  restrain  the  use  of  a  name  or  a  trade-mark,  or  the  pub- 
lication of  letters,  rests  upon  the  ground  of  the  phiintifF's  property  in  his 
name,  trade-mark  or  letters,  and  of  the  defendant's  unlawful  use  thereof. 
Routh  V.  Webster,  10  Beav.  561  ;  Leatlier  Cloth  Co.  v.  American  Leather  Cloth 
Co.,  4  De  G.,  J.  &  S.  137,  and  11  H.  L.  Cas.  523;  Maxwell  v.  Hogg,  L.  R.  2  Ch. 
307,  310,  313;  Gee  v.  Pritchard,  2  Swanst.  402. 

"The  present  bill  alleges  no  trust  or  contract  between  the  parties,  and  no 
use  by  the  defendants  of  the  plaintiff's  name ;  but  only  that  the  defendanta 
made  false  and  fraudulent  representations,  oral  and  written,  that  the  articles 
manufactured  by  the  plaintiff  were  infringements  of  letters  patent  of  the  de- 
fendant corporation,  and  that  the  plaintiff  had  been  sued  by  the  defendant 
corporation  therefor;  and  that  the  defendants  further  threatened  divers  per- 
sons with  suits  for  selling  the  plaintiff's  goods,  upon  the  false  and  fraudu- 
lent pretence  that  they  infringed  upon  the  patent  of  the  defendant  corporation. 
If  the  plaintiff  has  any  remedy,  it  is  by  action  at  law.  Barley  v.  Walford, 
n  Q.  B.  197;  Wren  v.  Weild,  L.  R.  4  Q.  B.  730."  Per  Gray,  C.  J.,  in  Boston 
Diatite  Co.  v.  Florence  Mfg.  Co.    (1873)    114  Mass.  69. 

The  American  courts  generally  are  in  accord  with  Justice  Gray's  statement. 
The  English  law,  while  formerly  as  stated  above,  has  since  been  changed  by 
statute.  Common  Law  Procedure  Act  (1854)  §§  79,  82;  Supreme  Court  of 
Judicature  Act  (1873)  §  25  (8).  For  tlie  scope  of  the  power  of  the  Court 
under  these  provisions,  see  eases  collected  by  Professor  Lewis  in  his  volume 
of  cases,  "Restraint  of  Infringement  of  Incorporal  Rights,"  p.   382  et  seq. 


CHAP.  IV.]  JOHN  HORSMONGER'S  CASE  233 

Section  2.    Maxims  of  Equity.' 


A.    Equity  A  els  in  Perstonam.. 

JOHN  HORSMOxVGER'S  CASE. 

In  Ciianceuy,  1390-1403. 

[Select  Cases  in  Chancery,  10  Selden  Society,  No.  123.] 

To  the  Chancellor  of  England, 
Humbly  beseecheth  John   Horsmonger  that  whereas  one  John  Pecham 
enfeoffed  Reginald  Pympe  and  Walter  Judde,  amongst  others,  in  certain 
lands  and  tenements  in  the  County  of  Kent,  upon  certain  conditions, 

'  "It  must  not  be  supposed  that  all  these  maxims  are  equally  important,  or 
that  all  have  been  equally  fruitful  in  the  development  of  doctrines  and  rules; 
but  it  is  not  an  fxaj^ncvation  to  say  that  he  who  has  grasped  tliem  all  with 
a  clear  com|ii(!unsinii  df  tlicir  lull  moaning  and  effect  has  ah'eady  obtained  an 
insiglrtr  into  whatever  is  essential  and  distinctive  in  the  system  of  equity 
jurisprudence,  and  has  found  tlie  explanation  of  its  peculiar  doctrines  and 
rules." — Pomeroy,  1  Equity  Jurisprndence,  §  336. 

In  closing  a  not  overfriendly  article  on  "The  Use  of  Maxims  in  Jurispru- 
dence," Professor  Jeremiah  Smith  uses  the  following  language :  "What  then  is 
the  conclusion  of  the  whole  matter?  Shall  we  say  that  Mr.  Broom's  book 
should  be  burned  by  the  common  hangman ;  and  that  the  citation  of  maxims 
in  courts  of  justice  should  be  forbidden  by  a  legislative  enactment  framed 
upon  the  model  of  the  statute  passed  in  the  early  days  of  Kentucky,  prohibit- 
ing the  citation  of  English  decisions.  Far  from  it.  On  the  contrary,  Mr. 
Broom's  excellent  work  should  be  in  the  library  of  every  practitioner;  and  all 
lawyers  should  familiarize  themselves  with  the  leading  maxims,  which  have 
the  great  merit  of  being  -'easily  learned  and  not  easily  forgotten."  But  it 
should  always  be  remembered  that  these  familiar  phrases  are  not  all  of  equal 
value ;  that  some  ought  to  be  amended,  and  others  discarded  altogether.  Above 
all  it  sliould  be  remembered  that  these  maxims  ,even  the  best  of  them)  are 
^mlv_jnaxii)is;  flint  Ihey  ;iro""ii(it  meant  to  take  the  place  of  a  digest;"  that 
thev^nrc  iicitlici-  (Iclinitions  imi-  treatises;  that  while  they  are  "a  convenient 
currency,"  yet  "tlioy  rc(|iiii('  tlic  test  from  time  to  time  of  careful  analysis:" 
and  that,  in  many  in^taiicc^,  they  are  merely  guide-posts  pointing  to  the  right 
road,  hut  not   the  road  itself." — 9  Harvard  Law  h'rvicir  13,  26. 

"A  maxim  is  a  pro])osition  to  be  of  all  men  confessed  and  granted  without 
proofe,  argument,  or  discourse."     Co.  Lift.  167  a. 

In  speaking  of  the  maxim  of  the  common  law — volenti  non  fit  injuria — 
Lord  Esher,  M.  R.  said  in  Yarmouth  v.  France  (1887)  L.  R.  10  Q.  R.  D.  647, 
653:  "I  need  hardlv  repeat  that  I  detest  the  attempt  to  fetter  t lie_Laiii_by i 
maxims.  They  are  ajmost  invariably  misleading:  they  are  for  the  most  part 
^o  large  and  general  in  their  language  that  they  always  include  somethingU 
whicli  really  is  not  intended  to  be  included  in  them."  ' 


234  JOHN  IIORSMONGER'S  CASE  [part  i. 

amongst  which  it  was  contained  that  the  wish  of  the  said  John  Pecham 
was  that  when  the  said  lands  were  sold  he  who  should  be  the  nearest 
of  blood  to  the  said  John  Pecham,  to  whom  the  heritage  of  the  lands 
and  tenements  should  descend,  should  have  £40  to  relieve  his  estate; 
which  lands  and  tenements  have  now  been  sold  by  the  said  feoffees  for 
500  marks,  which  sum  the  said  Reginald  has  in  his  keeping;  And 
although  the  said  suppliant,  as  kinsman  and  heir  to  the  said  John 
Pecham,  that  is  to  say,  son  of  Thomas  Horsmonger,  son  of  Thomas 
Horsmonger,  son  of  Agnes,  late  wife  of  GeoflErey  Horsmonger  and  sister 
to  Thomas  Pecham,  father  of  the  said  John  Pecham,  hath  oftentimes 
requested  the  said  Reginald  to  pay  and  deliver  the  said  £40  to  him, 
according  to  the  wish  of  the  said  John  Pecham;  nevertheless  he  will 
not  pay  him  a  penny  of  it,  to  the  great  damage  of  the  said  suppliant : 
And  so  it  is,  most  reverend  [Lord],  that  the  said  suppliant  cannot  have 
any  remedy  in  this  behalf  by  the  law  of  Holy  Church,  nor  by  the  com- 
mon law  of  the  land :  May  it  please  your  most  gracious  Lordship,  in 
honour  of  God  and  on  account  of  righteousness,  to  grant  writs  to  cause 
the  said  Walter  and  Reginald  to  come  before  you  in  the  King's  Chan- 
cery, which  is  the  Court  of  Conscience,'  there  to  answer  thereto  as  reason 
and  conscience  demand,  otherwise  the  said  suppliant  is  and  will  be 
"without  remedy,  which  God  forfend. 

T,,    ,         r       .-,  ..       (John  Richelot  of  Kingston. 

Pledges  for  the  prosecution  {  „,.,,.        tt  n     ,.  r> 

I  VVilliam  Hall  of  burrey. 

'  "The  word  'conscience'  is  used  frequently.  *  *  *  Such  expressions  as 
'conscience  and  law',  'the  law  of  conscience',  'law  and  conscience',  'law  and 
right',  'law,  right,  and  good  conscience',  'right  and  reason',  'reason  and  good 
faith',  are  common  enough.'  Select  Cases  in  Chancery,  10  Sclden  So- 
ciety    *     *     * 

"In  the  use  of  the  writs  of  suhpena  the  chancery  is  not  a  court  of  record, 
for  it  is  only  to  examine  the  conscience.  We  here  are  bound  to  the  law  and 
cannot  go  beyond.  It  belongs  to  them  to  examine  the  conscience.  For  when 
the  deed  is  good  and  always  has  been  so,  their  examination  will  not  make  it 
bad,  nor  will  their  examination  make  it  good  and  legal  in  our  law.  And 
since  the  defendants  cannot  have  any  remedy  by  our  law,  they  shall  sue  then 
to  be  restored  to  their  obligation;  and  the  effect  of  their  power  and  decree 
is  to  restore  the  party  to  his  obligation,  or  to  compel  the  plaintiff  to  make  an 
acquittance  or  release.  But  to  execute  this  the  Chancery  can  do  nothing  but 
order  him  to  prison,  there  to  remain  until  ho  will  obey.  And  if  the  party  will 
lie  in  prison  rather  than  give  up  the  obligation,  the  otlier  is  without  remedy, 
and  so  the  Chancellor  has  no  power  to  nullify  the  obligation."  Per  Pricot,  C. 
J.  in  J.  R.  V.  M.  P.  (14.59)  Y.  B.  37  //.  17  f.  13,  pi.  3,  Common  Bench,  as 
printed  by  Mr  Ames,  Cases  on  Equity  Jurisdiction  1. 

"If  after  all  this  a  man  will  still  suppose  there  is  a  secret  trust,  security, 
or  agreement  V)etween  the  parties  to  repurchase  this  rent,  whicli  no  bill 
cliarges,  no  proof  can  make  out,  and  the  defendant  denies  upon  oath,  then  it 
must  be  sucli  a  trust,  security,  or  agreement  as  is  only  between  a  man  and  his 
confessor.     With  such  a  conscience  as  is  only  naturalis  et  interna,  this  court 


CHAP.  IV.]  TOLLER  v.  CARTERET  235 

Greaves  v.  Tofield  (1880),  /..  R.  U  Ch.  Div.  563,  577.  Bramwell, 
L.  J.: — 1  also  think  that  this  appeal  must  be  allowed.  I  think  so  with 
great  doubt  and  the  greatest  reluctance,  but  it  seems  to  me  that  the 
authorities  arc  conclusive.  I  understand  them  to  have  established  this 
beyond  dispute,  that  if  a  man  having  an  estate  agrees  to  sell  it,  or  under- 
takes to  grant  an  interest  in  it,  or  a  charge  upon  it,  for  a  valuable  con- 
sideration, and  afterwards,  disregarding  the  bargain  he  has  made,  con- 
veys to  a  third  iierson,  or  so  deals  with  it  by  bargain  with  a  third  person, 
that  he  is  incompetent  to  convey  the  estate  or  grant  the  interest  to 
the  first  which  he  had  agreed  to  do,  and  the  third  person  has  all  along 
had  notice  of  the  first  contract,  the  conscience  of  the  second  purchaser 
is  affected,  and  he  cannot  retain  the  estate  without  giving  the  i)erson 
who  entered  into  the  first  contract  that  right  in  it  for  which  he  had  stipu- 
lated, and  if  necessary  he  must  join  in  a  conveyance  of  the  estate  if  the 
first  person  was  a  purchaser,  or  he  must  join  in  executing  a  charge  if 
it  was  a  charge  that  was  to  be  executed,  or  a  lease  if  it  was  a  lease  to 
be  granted. 

I  understand  the  authorities  further  to  establish  this,  that  that  prin- 
ciple is  not  affected  by  these  Acts  of  Parliament  which  require  registra- 
tion in  order  to  give  or  to  prevent  a  priority,  but  that  the  conscience  of 
the  second  purchaser,  as  I  have  called  him,  is  equally  affected,  and  that 
the  intention  of  the  Legislature  in  such  acts  as  those  I  have  referred  to 
was  to  afford  a  protection  to  persons  whose  consciences  were  not  affected,  g^ 
and  not  to  give  the  second  purchaser  whose  conscience  was  affected 
an  opportunity  of  joining  in  the  commission  of  that  which  was  a  breach 
of  contract  and  a  wrong  to  the  first  person  who  made  the  bargain. 


TOLLER  V.  CARTERET. 
In  Chancery,  before  Lord  Keeper  Cow^per,  1705. 

[2   Vernon  493.] 

Sir  Philip  Carteret,  owner  of  the  island  of  Sarhe,  made  a  mortgage 
thereof  to  one  Willowe  the  plaintiff's  intestate,  for  five  hundred  years 
for  5001. 

The  bill  was  that  the  defendant  might  redeem,  or  be  foreclosed. 

has  nothing  to  do;  the  conscience  by  Avhich  I  am  to  prooeed  is  merely  cirilis 
et  politica,  and  tied  to  certain  measures;  and  it  is  infinitely  better  for  the 
public  that  a  trust,  security,  or  agreement,  which  is  wholly  secret,  should  mis- 
carry, than  that  men  should  lose  their  estates  by  the  mere  fancy  and  imagina- 
tion of  a  Chancellor.  The  rule  of  nuUus  recedat  a  canceUaria  ftlne  rcmedis,  ^ 
was  never  meant  of  English  proceeding,s,  but  only  of  original  writs,  when  the  Tj 
case  would  bear  one';  and  so  the  Chancellor  in  5  Hen.  7  understood  it ;  for 
otherwise,  says  he,  no  man  need  to  be  confessed." — Fer  Lord  Nottingham  in 
Cook  V.  Fountain  (1676)   3  Swanst.  585,  600. 


236  PENN  V.  LOED  BALTIMORE  [part  i. 

The  defendant  pleaded  to  the  jurisdiction  of  the  Court,  that  the  island 
of  Sarke  was  part  of  the  Dutchy  of  Normandy,  and  had  laws  of  their 
own,  and  were  under  the  jurisdiction  of  the  Courts  of  Guernsey,  and  not 
within  the  jurisdiction  of  the  Court  of  Chancery;  and  cited  4  Inst.  284. 
Andersons  2  Rep.  115.   Kelloway  202. 

Lord  Keeper  over-ruled  the  plea,  because  the  grant  was  of  the  whole 
island:  and  secondly,  that  the  Court  of  Chancery  had  also  a  jurisdiction, 
the  defendant  being  served  with  the  process  here,  &  aquitas  agit  in  per- 
sonam, which  is  another  answer  to  the  objection.* 


PENN  V.  LORD  BALTIMORE. 

In  Chancery^  before  Lord  Chancellor  Hardwicke,  1750. 

\lVesey  Senior,  444.] 

The  bill  was  founded  on  articles,  entered  into  between  the  plaintiffs 
and  defendant  10  May,  1732,  which  articles  recited  several  matters  as 
introductory  to  the  stipulation  between  the  parties,  and  particularly 
letters  patent  granted  20  June,  2  C.  1,  by  which  the  district,  property, 
and  government  of  Maryland  under  certain  restrictions  is  granted  to 
defendant's  ancestor,  his  heirs  and  assigns:  farther  reciting  charters 
or  letters  patent  in  KTSl,  by  which  the  province  of  Pennsylvania  is 
granted  to  Mr.  William  Penn  and  his  heirs;  and  stating  a  title  to  the 
plaintiffs  derived  from  James  Dul-ce  of  York,  to  the  three  lower  coun- 
ties by  two  feoffments,  both  bearing  date  24  August,  1682.  The  articles 
recite,  that  several  controversies  had  been  between  the  parties  concern- 
ing the  boundaries  and  limits  of  these  two  provinces  and  three  lower 
counties,  and  make  a  particular  provision  for  settling  them  by  drawing 
part  of  a  circle  about  the  town  of  Newcastle,  and  a  line  to  ascertain 
the  boundaries  between  Maryland  and  the  three  lower  counties,  and  a 
provision  in  whatever  manner  that  circle  and  line  should  run  and  be 
drawn;  and  that  commissioners  should  do  it  in  a  certain  limited  time, 
the  final  time  for  which  was  on  or  before  25  December,  1733.  There 
was  beside  a  provision  in  the  articles,  that  if  there  should  be  a  want 
of  a  Quorum  of  commissioners  meeting  at  any  time,  the  party  by  de- 
fault of  whose  commissioners,  the  articles  could  not  be  carried  into 
execution,  should  forfeit  the  penalty  of  £5,000  to  the  other  party:  and 
a  provision  for  making  conveyances  of  the  several  parts  from  one  to 

*  For  other  cases  stating  this  well  established  rule,  and  not  noted  in  the 
cases  printed  here,  see  Earl  of  Athol  v.  Earl  of  Derby  (1682-83)  1  Ch.  Ca. 
220;  Earl  of  Derby  v.  Duke  of  Athol  (1748-49)  1  Ves.  8r.  202;  Kildare  v. 
Eustace  (1686)  1  Vcrn.  405,  419,  423,  428,  437,  s.  c.  1  Eq.  Ahr.  133;  Baylcy 
V.  Edwards  (1792)  3  Hwanst.  703,  710;  Lord  Cranstown  v.  Johnston  (1796) 
3  Ves.  170,  182;  Gardner  v.  Ogden  (1860)  22  N.  Y.  327,  Hart  v.  Sansom 
(1884)  110  TJ.  H.  151;  Arndt  v.  Grifjfis  (1890)  134  U.  S.  316;  Allen  v. 
Iturliaiuin.  (1892)  97  Aln.  399;  llnydcn  v.  Yale  (1893)  45  La.  Ann.  362;  State 
V.  Zachrilz    (1901)    106  A/o.  307. 


CHAP.  IV.]  PENN  V.  LORD  BALTIMORE  237 

the  other  in  these  boundaries,  and  for  enjoyment  of  the  tenants  and  land- 
holders. 

The  bill  was  for  a  specific  performance  and  execution  of  the  arti- 
cles; what  else  was  in  the  cause  came  by  way  of  argument  to  support, 
or  objection  to  impeach,  this  relief  prayed. 

When  the  cause  came  on  before,  it  was  ordered  to  stand  over,  that 
the  Attorney-General  should  be  made  a  party;  who  now  left  it  to  tht 
court  to  make  a  decree,  so  as  not  to  prejudice  the  right  of  the  crown. 

The  first  objection  for  defendant  was,  that  this  court  has  not  juris- 
diction nor  ought  to  take  cognizance  of  it;  for  that  the  jurisdiction 
is  in  the  King  and  council.' 

Lord  Chancellor.  I  directed  this  cause  to  stand  over  for  judg- 
ment, not  so  much  from  any  doubt  of  what  was  the  justice  of  the  case, 
as  by  reason  of  the  nature  of  it,  the  great  consequence  and  impor- 
tance, and  the  great  labor  and  ability  of  the  argument  on  both  sides; 
it  being  for  the  determination  of  the  right  and  boundaries  of  two  great 
provincial  governments  and  three  counties;  of  a  nature  worthy  the 
judicature  of  a  Roman  senate  rather  than  of  a  single  judge:  and  my 
consolation  is,  that  if  I  should  err  in  my  judgment,  there  is  a  judica- 
ture equal  in  dignity  to  a  Roman  senate  that  will  correct  it. 

It  is  unnecessary  to  state  the  case  on  all  the  particular  circumstances 
of  evidence;  which  will  fall  in  more  naturally,  and  very  intelligibly, 
under  the  particular  points  arising  in  the  cause. 

The  relief  prayed  must  be  admitted  to  be  the  common  and  ordinary 
equity  dispensed  by  this  court;  the  specific  performance  of  agreements 
being  one  of  the  great  heads  of  this  court,  and  the  most  useful  one, 
and  better  than  damages  at  law,  so  far  as  relates  to  the  thing  in  specie; 
and  more  useful  in  a  case  of  this  nature  than  in  most  others;  because 
no  damages  in  an  action  of  covenant  could  be  at  all  adequate  to  what 
is  intended  by  the  parties,  and  to  the  utility  to  arise  from  this  agree- 
ment, viz.,  the  settling  and  fixing  these  boundaries  in  peace,  to  prevent 
the  disorder  and  mischief,  which  in  remote  countries,  distant  from  the 
seat  of  government,  are  most  likely  to  happen,  and  most  mischievous. 
Therefore  the  remedy  prayed  by  a  specific  performance  is  more  neces- 
sary here  than  in  other  cases :  provided  it  is  proper  in  other  respects ; 
and  the  relief  sought  must  prevail,  unless  sufficient  objections  are  shown 
by  defendant ;  who  has  made  many  and  various  for  that  purpose. 

First,  the  point  of  jurisdiction  ought  in  order  to  be  considered:  and 
though  it  comes  late,  I  am  not  unwilling  to  consider  it.  To  be  sure 
a  plea  to  the  jurisdiction  must  be  offered  in  the  first  instance,  and  put 
in  primo  die;  and  answering  submits  to  the  jurisdiction:  much  more 

*  A  part  of  the  opinion  given  relates  chiefly  to  this  objection. 

It  will  be  of  interest  to  note  that  the  line  here  drawn  was  the  famous 
Mason  and  Dixon's  line  which  was,  for  many  years,  not  only  the  boundary 
between  Maryland  and  Pennsylvania,  but  also  the  dividing  line  between  tb» 
free  and  slave  states. 


238  PENN  V.  LORD  BALTIMORE  [part  i. 

when  there  is  a  proceeding  to  hearing  on  the  merits,  which  would  be 
conclusive  at  common  law :  yet  a  court  of  equity,  which  can  exercise 
a  more  liberal  discretion  than  common-law  courts,  if  a  plain  defect  of 
jurisdiction  appears  at  the  hearing,  will  no  more  make  a  decree,  than 
where  a  plain  want  of  equity  appears.     It  is  certain,  that  the  original 
jurisdiction  in  cases  of  this  kind  relating  to  boundaries  between  prov- 
inces, the  dominion,  and  proprietary  government,  is  in  the  King  and 
council;  and  it  is  rightly  compared  to  the  cases  of  the  ancient  Com- 
motes and  Lordships  Marches   in  Wales;  in  which  if  a  dispute  is  be- 
tween private  parties  it  must  be  tried  in  the  Commotes  or   Lordships; 
but  in  those  disputes,  where  neither  had  jurisdiction  over  the  other  it 
must   be   tried  by  the  King  and  council;   and  the  King  is   to  judge, 
though  he  might  be  a  party;  this  question  often  arising  between  the 
crown  and  one  Lord-Proprietor   of  a  province   in  America;   so   in  the 
case  of  the  Marches   it  must  be  determined  in  the  King's  court,  who 
is  never  considered  as  partial  in  these  cases;  it  being  the  judgment  of 
his  judges  in  B.   R.   and   Chancery.     So   where  before   the    King  and 
council,  the  King  is  to  judge,  and  is  no  more  to  be  presumed  partial 
in  one  case  than  the  other.     This  court  therefore  has  no  original  juris- 
diction on  the  direct  question  of  the  original  right  of  the  boundaries; 
and  this  bill  does  not  stand  in  need  of  that.     It  is  founded  on  articles 
executed  in  England  under  seal  for  mutual  consideration;  which  gives 
jurisdiction  to  the  King's  courts  both  in  law  and  equity,  whatever  be  the 
subject  matter.     An  action  of  covenant  could  be  brought  in  B.  R.  or 
C,  B.  if  either  side  committed  a  breach :  so  might  there  be  for  the  £5,000 
penalty  without  going  to  the  council.     There  are  several  cases,  wherein 
collaterally,  and  by  reason   of  the  contract  of   the  parties,  matter  out 
of  the  jurisdiction  of  the  court  originally  will  be  brought  within  it. 
Suppose   an  order  by  the  King  and  council    in  a   cause,  wherein    the- 
King  and  council  had  original  jurisdiction;  and  the  parties  enter  into 
an  agreement  under  hand  and  seal  for  performance  thereof :    A  bill  must 
be  in  this  court  for  a   specific  performance;   and  perhaps  it  will  ap- 
]pear,  this  is  almost  literally  that  case.     The  reason  is,   because  none 
but  a  court  of  equity  can  decree   that.     The  King  in   council  is  the 
proper  judge  of  the  original  right;   and   if  the   agreement  was  fairly 
entered  into  and  signed,  the  King  in  council  might  look  on  that,  and 
allow  it  as  evidence  of  the  original  right:  but  if  that  agreement  is  dis- 
j)uted,  it  is  impossible  for  the  King  in  council  to  decree  it  as  an  agree- 
ment.    That  court   cannot   decree   in   personam   in  England  unless   in 
certain  criminal  matters;  being  restrained  therefrom  by  Stat.  16  Car., 
and  therefore  the  Lords  of  the  council  have  remitted  this  matter  very 
properly  to  be  determined  in  another  place  on  the  foot  of  the  contract. 
The  con.science  of  the  party  was  bound  by  this  agreement;  and  being 
within  the  jurisdiction  of  this  court,  4  Inst.  213,"  which  acts  in  personam, 

'  "If  thf  rloffnd.'mi  (hvoll  mil  of  tbo  county  palatine,   if  any  of  the  county 
palatine  have  cause  to  conij)lain  a<,Minst  them  for  matter  of  equity  for  lands 


CHAP.  IV.]  PENN  V.  LORD  BALTIMORE  230 

the  court  may  properly  decree  it  as  an  agreement,  if  a  foundation  for  it. 
To  go  a  step  farther;  as  this  court  collaterally  and  in  consequence  of 
the  agreement  judges  concerning  matters  not  originally  in  its  jurisdic- 
tion, it  would  decree  a  performance  of  articles  of  agreement  to  per- 
form a  sentence  in  the  Ecclesiastical  court  just  as  a  court  of  law  would 
maintain  an  action  for  damages  in  breach  of  covenant.' 

The  next  head  of  objection  is  taken  from  the  general  nature  and  cir- 
cumstances of  the  agreement. 

First  it  is  true,  the  court  never  decrees  specifically  without  a  considera- 
tion:  but  this  is  not  without  consideration;  for  though  nothing  valuable 
is  given  on  the  face  of  the  articles  as  a  consideration,  the  settling  bounda- 
ries, and  peace  and  quiet,  is  a  mutual  consideration  on  each  side;  and  in 
all  cases  make  a  consideration  to  support  a  suit  in  this  court  for  perform- 
ance of  the  agi'eement  for  settling  the  boundaries. 

The  objection  of  tb.e  time  for  performance  being  lapsed  may  be  answer- 
ed; for  it  is  the  business  of  this  court  to  relieve  against  lapse  of  time  in 
performance  of  an  agreement ;  and  especially  where  the  non-performance 
has  not  arisen  by  default  of  the  party  seeking  to  have  a  specific  perform- 
ance ;  as  it  plainly  does  not  here. 

Next,  these  articles  are  not  like  submission  to  arbitration.  In  those 
cases  generally  the  time  is  conditional,  so  as  determination  be  made  by 
such  a  day;  here  the  line  and  circle  are  agreed  on  by  distinct,  independ- 
ent, covenants,  and  that  they  shall  form  the  boundaries  of  these  tracts  of 
land;  this  therefore  is  a  particular,  certain,  specific  contract  of  the  par- 
ties, that  these  shall  be  the  boundaries;  nothing  left  to  the  judgment  of 
the  commissioners,  who  are  merely  ministerial  to  run  the  line,  &c.  accord- 
ing to  the  agreement,  and  set  the  marks.  Therefore  it  is  not  like  an 
award,  but  is  an  agreement,  which  this  court  will  see  pursued. 

As  to  any  imposition  or  surprise,  the  evidence  is  clearly  contrary  there- 
to.    It  would  be  unnecessary  to  enter  into  the  particulars  of  that  evi- 

or  goods  within  the  county  palatine,  the  plaintiff  my  complain  in  the  chan- 
cery of  England,  because  he  hath  no  means  to  bring  them  to  answer,  and  the 
court  of  equity  can  bind  but  the  person,  for  otherwise  the  subject  should  have 
just  cause  of  suit^  and  should  not  have  remedy;  and  when  particular  couits 
fail  of  justice,  the  general  courts  shall  give  remedy,  ne  curiae  regis  deficcrent 
in  justitia   exhibenda."  4  Inst.  213. 

'  "Where  the  necessary  parties  are  before  a  court  of  equity,  it  is  immaterial 
that  the  res  of  the  controversy,  whether  it  be  real  or  personal  property,  is 
beyond  the  territorial  jurisdiction  of  the  tribunal.  It  has  the  power  to  com- 
pel the  defendant  to  do  all  things  necessary,  according  to  the  lex  loci  rei  slice, 
which  he  could  do  voluntarily,  to  give  full  effect  to  the  decree  against  him. 

"Without  regard  to  the  situation  of  the  subject-matter,  such  courts  consider 
the  equities  between  the  parties,  and  decree  in  'personam  according  to  those 
equities,  and  enforce  obedience  to  their  decrees  by  process  in  personam.  2 
Story,  Eq.,  sect.  899;  Miller  v.  Sherry,  2  Wall.  249;  Penn  v.  Lord  Baltimore, 
1  Ves.  444;  Mitchell  v.  Bunch,  2  Paige  (N.  Y.),  GOG."  Per  Mr.  Justice  Swain, 
Phelps  v.  McDonald   (1878),  99  U.  S.  298,  308. 


240  PENN  V.  LOKD  BALTIMORE  [part  i. 

denee ;  but  it  appears,  the  agreement  was  originally  proposed  by  defendant 
himself:  he  himself  produced  the  map  or  plan  afterwards  annexed  to 
the  articles:  he  himse'lf  reduced  the  heads  of  it  into  writing,  and  was 
very  well  assisted  in  making  it :  and  farther  that  there  was  a  great  length 
of  time  taken  for  consideration  and  reducing  it  to  form.  But  there  is 
something  greatly  supporting  this  evidence,  viz.  the  defect  of  evidence  on 
the  part  of  the  defendant,  which  amounts  to  stronger  negative  evidence, 
than  if  it  was  by  witnesses;  for  it  was  in  his  own  power  to  have  shewn 
it  if  otherwise.  Then  am  I  to  presume,  he  was  imposed  on,  in  a  plan  too 
sent  to  himself  by  his  own  agents:  as  to  the  plan  itself,  it  was  in  his 
own  power ;  with  regard  to  the  original  of  these  minutes  of  the  agreement 
wrote  by  himself,  though  ordered  by  the  court  to  be  produced,  they  are 
not  produced;  which  negative  evidence  supports  the  evidence  of  the  fair- 
ness of  carrying  on  this  agreement  on  the  part  of  the  plaintiffs. 

As  to  the  court's  not  enforcing  the  execution  of  their  judgment,  if  they 
could  not  at  all,  I  agree,  it  would  be  in  vain  to  make  a  decree;  and  that 
the  court  cannot  enforce  their  own  decree  in  rem,  in  the  present  case :  but 
that  is  not  an  objection  against  making  a  decree  in  the  cause;  for  the 
strict  primary  decree  in  this  court  as  a  court  of  equity  is  in  personam, 
long  before  it  was  settled,  whether  this  court  could  issue  to  put  into  pos- 
session in  a  suit  of  lauds  in  England;  which  was  first  begun  and  settled  in 
the  time  of  James  I.  but  ever  since  done  by  injunction  or  writ  of  assis- 
tance to  the  sheriif:  but  the  court  cannot  to  this  day  as  to  lands  in 
Ireland  or  the  plantations.  In  Lord  King's  time  the  case  of  Richard- 
son V.  Ilnmilton,  Attorney-General  of  Pennsylvania,  which  was  a  suit  of 
land  and  a  house  in  the  town  of  Philadelphia,  the  court  made  a  decree, 
though  it  could  not  be  inforced  in  rem.  In  the  case  of  Lord  Anglesey  of 
land  lying  in  Ireland,  I  decreed  for  distinguishing  and  settling  the  parts 
of  the  estate,  though  impossible  to  inforee  that  decree  in  rem,  but  the 
party  being  in  England,  I  could  enforce  it  by  process  of  contempt  in  per- 
sonam and  sequestration,  which  is  the  proper  jurisdiction  of  the  court. 
And  indeed  in  the  present  case,  if  the  parties  want  more  to  be  done,  they 
must  resort  to  another  jurisdiction ;  and  it  looks  by  the  order  in  1735,  as 
if  that  was  in  view;  liberty  being  thevel\y  given  to  resort  to  that  board. 

I  am  of  opinion  therefore  to  decree  a  specific  performance  of  this  agree- 
ment witlunit  prejudice  to  any  right,  &c.  of  the  crown.^ 

'"Wliilst  Coin-ts  of  Equity  hiive  never  claiiiiod  to  act  directly  upon  land 
situated  at)road,  they  liave  purported  to  act  upon  the  conscience  of  persons 
livinf,'  here.  In  Lord  Craiostoum  v.  Johnston  (1  Cowp.  161,  180),  Sir  R.  P. 
Allien,  Master  of  the  Rolls,  said:  'Archer  v.  Preston,  Lord  Arglass  v.  Mus- 
rh<i„i],,  Lord  Kildare  v.  Eustace,  1  Lq.  Ahr.  133.  1  Vern.  75,  135,  419.  Those 
cases  clearly  sliow,  Ihat  with  regard  to  any  contract  made  or  equity  between 
persons  in  this  country,  respecting  lands  in  a  foreign  country,  particularly 
in  the  British  dominions,  this  Court  will  hold  the  same  jurisdiction  as  if  they 
were  situated  in  England'."  Per  llemchell,  L.  C.  in  British  So.  Africa  Co.  v. 
Coiiipanhiu  dc  t'ui^ainhiquc   (1893),  App.  Cas.  602,  626. 


CHAP.  IV.]       GREAT  FALLS  MFG.  CO.  v.  WORSTER  241 

McCoRMicK  V.  Grogan  (1869)  L.  R.  4  E.  L.  82,  97.— Lord  Westbury: 
My  Lords,  the  jurisdiction  which  is  invoked  here  by  the  Appellant  is 
founded  altogether  on  personal  fraud.  It  is  a  jurisdiction  by  which  a 
Court  of  Equity,  proceeding  on  the  ground  of  fraud,  converts  the 
party  who  has  committed  it  into  a  trustee  for  the  party  who 
is  injured  by  that  fraud.  Now,  being  a  jurisdiction  founded  on  per- 
sonal fraud,  it  is  incumbent  on  the  Court  to  see  that  a  fraud,  a  malus 
animus,  is  proved  by  the  clearest  and  most  indisputable  evidence.  It 
is  impossible  to  supply  presumption  in  the  place  of  proof,  nor  are  you 
warranted  in  deriving  those  conclusions  in  the  absence  of  direct  proof, 
for  the  purpose  of  affixing  the  criminal  character  of  fraud,  which  you 
might  by  possibility  derive  in  a  case  of  simple  contract.  The  Courtji  *J,' 
of  Equity  has,  from  a  very  early  period,  decided  that  even  an  Act  of     ^^ 


Parliament  shall  not  be  usedT  as  an  instrument  oi  iraud ;  and  if  in  the 


machinery  of^  perpetrating  a  fraud  an  Act  of  Parliament  intervenes,  the 
Court  of^  Equity,  it  is  true,  does  not  set  aside  the  Act  of  Parliament, 
but  it_fastens  on  the  individual  who  gets  a  title  under  that  Act,  anc 
imposes  upon  him  a  ijersonal  obligation,  because  he  applies  the  Act  asi 
an  instrument  for  accomplishing  a  fraud.  In  this  way  the  Court  of  ^ 
Equity  has  dealt  with  the  Statute  of  Frauds,  and  in  this  manner,  also, 
it  deals  with  the  Statute  of  Wills. 


GREAT  FALLS  MANUFACTURING  CO.  v.  WORSTER.      Lrtr^ 

In  the  Superior  Court  of  Judicature  of  New  Hampshire,  1851. 


[23   New   Hampshire  462.]  C  (U 

C 
The  orators  owned  a  dam  extending  across  Salmon  river,  into  the  state 
of  Maine.  The  defendant  was  a  citizen  of  New  Hampshire.  The  orators 
filed  a  bill  to  restrain  the  defendant  from  going  into  Maine  and  com- 
mitting acts  injurious  to  the  property  of  the  orators  situated  there. 
The  defendant  raised  the  question  of  the  court's  jurisdiction.' 


In  an  earlier  case,  Foster  v.  VassaJl  (1747)  3  Atk.  587,  589,  the  same 
learned  Chancellor  said: 

"The  different  courts  of  equity  are  held  under  the  same  crown,  though 
in  different  dominions,  and  therefore,  considering  this  as  a  court  abroad,  the 
point  of  jurisdiction  is  the  same  as  in  Ireland;  and  it  is  certain  where  the 
provision  is  in  Enr/land,  let  the  cause  of  suit  arise  in  Ireland,  or  the  planta- 
tions if  the  bill  be  brought  in  England,  or  the  defendant  is  here,  the  courts  do 
agere  in  personam,  and  may  by  compulsion  on  the  person,  and  process  of  the 
court,  compel  him  to  do  justice." 

^  A  short  statement  of  facts  is  substituted  for  that  of  the  original  report. 


242  GKEAT  FALLS  MFG.   CO.   v.  WORSTER  [part  i. 

Gilchrist,  C.  J.  The  application  now  before  us  is  made  by  virtue  of 
the  provision  contained  in  §  7,  ch.  171,  Rev.  Stat.,  which  authorizes  the 
court  to  "grant  writs  of  injunction  whenever  the  same  shall  be  necessary 
to  prevent  injustice."  Questions  analogous  to  that  now  presented  have  of- 
ten been  investigated,  both  in  England  and  in  this  country,  and  the  prin- 
ciples recognized  by  the  decisions,  go  far  enough  to  authorize  the  court 
to  grant  the  relief  now  prayed  for.  The  court  are  not  asked  to  assume 
any  jurisdiction,  or  exercise  any  control  over  the  land  in  Maine,  or 
to  interfere  with  the  laws  of  that  State.  Nothing  more  is  asked  than 
that  the  respondent,  a  citizen  of  New-Hampshire,  and  residing  within 
her  limits,  shall  he  object  to  her  laws,  and  that,  being  within  reach 
of  the  process  of  this  court,  he  shall  be  forbidden  to  go  elsewhere  and 
commit  an  injury  to  the  property  of  other  citizens,  situated  here,  and 
entitled  to  the  protection  of  our  laws. 

In  the  case  of  Penn  v.  Lord  Baltimore,  1  Ves.,  444,  Lord  Hardwiche 
recognized  and  acted  upon  the  principle,  that  equity,  as  it  acts  primarily 
in  personnm,  and  not  merely  in  rem,  may  make  a  decree,  where  the 
person  against  whom  relief  is  sought,  is  within  the  jurisdiction  upon 
the  ground  of  a  contract,  or  any  equity  subsisting  between  the  parties 
respecting  property  situated  out  of  the  jurisdiction.  A  decree  was  made 
for  the  specific  performance  of  a  contract  relating  to  the  boundary  be- 
tween the  colonies  of  Pennsylvania,  and  Maryland.  In  the  course  of  his 
judgment.  Lord  Tlardviche  says:  '"this  court,  therefore,  has  no  original 
jurisdiction  on  the  direct  question  of  the  original  right  of  the  boundaries, 
and  their  bill  does  not  stand  in  need  of  that.  It  is  founded  on  articles 
executed  in  England,  under  seal,  for  mutual  considerations,  which  gives 
jurisdiction  to  the  king's  courts,  both  in  law  and  in  equity,  whatever  be 
the  subject  matter."  He  subsequently  says :  "the  conscience  of  the  party 
was  bound  by  this  agreement,  and  being  within  the  jurisdiction  of  this 
court,  which  acts  in  personam,  the  court  may  properly  decree  it  as  an 
agreement." 

This  case  decides,  that  although  the  subject  matter  of  a  contract  be 
land  out  of  the  jurisdiction,  the  boundary  of  the  land  may  be  settled  by 
a  decree  for  a  specific  performance  of  the  contract.  In  this  way  a  party 
within  the  jurisdiction  may  be  compelled  to  do  an  act  of  justice,  in  re- 
lation to  land  out  of  the  jurisdiction.  The  case  is  a  leading  one,  and 
its  principle  has  been  extensively  followed.  This  doctrine,  however,  was 
not  first  suggested  by  Lord  Hnrdwicke.  Before  his  time,  it  was  well 
established  in  the  court  of  chancery,  although  it  had  not  received  so 
elaborate  an  exposition  in  any  preceding  case,  as  in  the  decision  re- 
ferred to.  In  the  case  of  Arglassc  v.  Muschamp,  1  Vernon,  75,  the  bill 
prayed  for  relief  against  an  annuity  charged  upon  the  orator's  lands  in 
Ireland,  on  the  ground  of  fraud.  The  respondent  pleaded  to  the  juris- 
diction of  the  court,  tlint.  the  lands  lying  in  Ireland,  the  matter  was 
properly  exaniinnlili'  tlicn',  ;ind  that  the  court  ought  not  to  interpose. 
The  Lord  C'liiiiHrlli/i-  said:  "ihis  is  surely  a  jest  put  upon  the  jurisdic- 


CHAP.  IV.]       GREAT  FALLS  MFG.  CO.  v.  WORSTER  243 

tion  of  this  court,  by  the  common  lawyers;  for  when  you  go  about  to 
bind  the  lands,  and  grant  a  sequestration,  to  execute  a  decree,  then  they 
readily  tell  you,  that  the  authority  of  this  court  is  only  to  regulate  a 
man's  conscience,  and  ought  not  to  affect  the  estate,  but  that  this  court 
must,  agere  in  personam,  only;  and  when,  as  in  this  case,  you  prosecute 
the  person  for  a  fraud,  they  tell  you,  you  must  not  intermeddle  here, 
because  the  fraud,  though  committed  here,  concerns  lands  that  lie  in 
Ireland,  which  make  the  jurisdiction  local;  and  so  would  wholly  elude 
the  jurisdiction  of  tliis  court."  The  plea  was  overruled.  In  the  case 
of  Toller  v.  Carteret,  2  Vernon,  494,  the  bill  was  to  foreclose  a  mortgage 
upon  the  island  of  Sarke,  and  the  respondent  pleaded  to  the  jurisdiction 
of  the  court,  that  the  island  of  Sarke  was  part  of  the  Duchy  of  Nor- 
mandy, and  had  laws  of  its  own,  and  was  under  the  jurisdiction  of  the 
courts  of  Guernsey,  and  not  within  the  jurisdiction  of  the  court  of 
chancery.  But  it  was  held,  "that  the  court  of  chancery  had  also  a  juris- 
diction, the  defendant  being  served  with  the  process  here,  et  wquitas 
agit  in  personam,  which  is  another  answer  to  the  objection."  In  Lord 
Cranstown  v.  Johnson,  3  Ves.,  170,  the  master  of  the  rolls,  after  com- 
isienting  on  some  of  the  cases,  says :  "these  eases  clearly  show,  that  with 
regard  to  any  contract  made,  or  equity  between  persons  in  this  country, 
respecting  lands  in  a  foreign  country,  particularly  in  the  British  do- 
minions, this  court  will  hold  the  same  jurisdiction,  as  if  they  were  situ- 
ated in  England."  In  Porfarlington  v.  Soiilhy,  3  M.  &  R.,  104,  the  bill 
was  to  restrain  the  respondent  from  suing  in  Ireland,  upon  a  bill  of 
exchange  given  for  a  gambling  debt.  Upon  a  motion  to  dissolve  the  in- 
junction Lord  Brougham  said:  "in  truth  nothing  can  be  more  un- 
founded, than  the  doubts  of  the  jurisdiction.  That  is  grounded,  like  all 
other  jurisdiction  of  the  court,  not  upon  any  pretension  to  the  exercise 
of  judicial  and  administrative  rights  abroad,  but  on  the  circumstance 
of  the  person  of  the  party  on  whom  this  order  is  made,  being  within 
the  power  of  the  court.  If  the  court  can  command  him  to  bring  home 
goods  from  abroad,  or  to  assign  chattel  interests,  or  coiavey  real  prop- 
erty locally  situate  abroad;  if  for  instance,  as  in  Penn  v.  Lord  Baltimore, 
it  can  decree  the  performance  of  an  agreement  touching  the  boundary 
of  a  province  in  North  America;  or  as  in  the  case  of  Toller  v.  Carteret, 
can  foreclose  a  mortgage,  in  the  isle  of  Sarke,  one  of  the  channel  is- 
lands, in  precisely  the  like  manner  can  it  restrain  the  party,  being  within 
the  limits  of  its  jurisdiction,  from  doing  anything  abroad,  whether  the 
thing  forbidden  be  a  conveyance,  or  other  act  in  pais,  or  the  instituting, 
or  prosecution  of  an  action  in  a  foreign  court." 

The  principle  that  a  court  in  chancery,  will  exercise  such  a  power  as 
the  orators  ask  should  now  be  enforced,  whenever  the  case  is  one  of 
equitable  cognizance,  and  the  parties  are  within  the  jurisdiction,  al- 
though the  property  may  be  beyond  it,  is  as  fully  recognized  by  the 
courts  in  this  country,  as  in  England.  In  Massie  v.  Watts,  6  Cranch, 
148,  the  question  was  whether  the  defendant,  being  within  the  jurisdic- 


244  GREAT  FALLS  MFG.  CO.  v.  WORSTER  [part  i. 

tion  of  the  circuit  court,  in  Kentucky,  could  be  decreed  to  convey  lands 
in  Ohio,  and  the  defence  was  that  the  lands  lay  beyond  the  jurisdiction 
of  the  court.  Marshall,  C.  J.,  said,  "where  the  defendant  is  liable,  either 
in  consequence  of  contract,  or  as  trustee,  or  as  the  holder  of  a  legal  title 
acquired  by  any  species  of  male  fides  practised  upon  the  plaintiff,  the 
principles  of  equity  give  a  court  jurisdiction,  wherever  the  person  may 
be  found,  and  the  circumstance  that  a  question  of  title  may  be  involved 
in  the  inquiry,  and  may  even  constitute  the  essential  point  on  which  the 
case  depends,  does  not  seem  sufficient  to  arrest  that  jurisdiction." 

It  is  said  by  Chancellor  Walworth,  in  the  case  of  Mitchell  v.  Bunch, 
2  Paige,  606,  that  the  original  and  primary  jurisdiction  of  this  court, 
was  in  personam  merely.  The  writ  of  assistance  to  deliver  possession, 
and  even  the  sequestration  to  compel  the  performance  of  a  decree,  are 
comparatively  of  modern  origin.  The  jurisdiction  of  the  court  was 
exercised  for  several  centuries,  by  the  simple  proceeding  of  attachment 
against  the  bodies  of  the  parties,  to  compel  obedience  to  its  orders  and 
decrees.  Although  the  property  of  a  defendant  is  beyond  the  reach  of 
the  court,  so  that  it  can  neither  be  sequestered  nor  taken  in  execution, 
the  court  does  not  lose  its  jurisdiction  in  relation  to  that  property,  pro- 
vided the  person  of  the  defendant  is  within  its  jurisdiction.  By  the 
ordinary  course  of  proceeding,  the  defendant  may  be  compelled  either 
to  bring  the  property  in  dispute,  or  to  which  the  complainant  claims  an 
equitable  title,  within  the  jurisdiction  of  the  court,  or  to  execute  such 
a  conveyance  or  transfer  of  it,  as  will  be  sufficient  to  vest  the  legal  title 
as  well  as  the  possession  of  the  property,  according  to  the  lex  loci  rei 
sit  a;. 

The  parties  in  the  cause,  in  which  these  views  were  expressed,  were 
foreigners,  temporarily  in  this  country.  The  bill  stated,  that  the  de- 
fendant had  sufficient  property  at  Carthagena  or  elsewhere,  to  satisfy  a 
judgment  which  the  complainant  had  recovered  against  him,  and  that 
the  defendant  was  about  to  leave  the  State  for  Carthagena.  The  bill 
prayed  for  satisfaction  of  the  judgment  out  of  the  property  of  the  de- 
fendant. 

Upon  another  application  of  the  same  principle,  the  chancellor  held, 
that  where  the  court  had  jurisdiction  of  the  person,  it  might  by  the 
ordinary  process  of  injunction  and  attachment  for  contempt,  compel  a 
defendant  to  desist  from  commencing  a  suit  at  law,  either  in  that  or 
any  foreign  jurisdiction.  Mead  v.  Merritt,  2  Paige,  402.  So  where  the 
person  was  within  the  jurisdiction,  it  was  held,  that  the  court  might 
conipcl  a  party  to  execute  a  trust  of  lands  in  Illinois,  valid  by  the  laws  of 
that  Staff,  or  to  convey  the  legal  title  according  to  the  decree,  so  long 
as  it  had  ihf;  power  to  execute  its  decision  through  the  medium  of  the 
holders  of  the  legal  title.     Tlawley  v.  James,  7  Paige,  213. 

In  the  case  of  Siilphen  v.  Fowlrr,  0  Paige,  280.  the  bill  was  filed  for 
the  specific  performance  of  a  contract  for  the  sale  of  lands  in  Michigan, 
against  the  infant  child  of  the  contracting  party,  who  at  the  time  of 


CHAP.  IV.]       GREAT  FALLS  MFG.  CO.  v.  WORSTER  245 

his  death  was  entitled  to  a  conveyance  of  the  legal  title  to  the  premises, 
which  was  subsequently  made  to  the  defendant.  It  was  held,  that  the 
court  had  jurisdiction  to  decree  the  specific  performance  of  a  contract 
for  the  sale  of  lands  in  another  State,  where  the  person  of  the  defendant 
was  within  reach  of  its  process,  and  might  direct  a  conveyance  by 
the  infant  when  she  should  arrive  at  the  proper  age  to  enable  her  to 
transfer  the  legal  title  according  to  the  laws  of  Michigan,  and  might 
authorize  the  orator  to  take  and  to  retain  possession  of  the  premises  until 
that  time,  if  he  could  obtain  possession  of  them  without  suit.  It  was 
also  held,  and  that  is  very  pertinent  to  the  present  inquiry,  that  in  the 
meantime,  the  court  might  grant  a  perpetual  injunction,  restraining  the 
defendant  from  disturbing  the  complainant  in  such  possession,  or  from 
doing  any  act  whereby  the  title  should  be  transferred  to  any  other  per- 
son, or  in  any  way  impaired  or  incumbered. 

This  decision  is  in  point,  not  only  as  regards  the  principle,  but  also 
in  relation  to  its  application  to  a  state  of  facts  similar  to  those  in  the 
case  now  before  us.  Nothing  more  is  asked  by  the  orators  here,  than 
that  the  defendant  should  be  restrained  from  injuring  or  interfering 
with  the  property  of  the  orators  situated  in  Maine,  and  the  above  case 
of  Sulphin  v.  Fowler  is  an  express  adjudication  that  he  may  be  so  en- 
joined. The  principle  is  also  recognized  and  stated,  by  the  most  eminent 
elementary  writers.  Jeremy's  Eq.  Jur.,  557;  Story's  Eq.  Jur.  §  §  743, 
744,  899,  900. 

It  would  be  a  great  defect  in  the  administration  of  the  law,  if  the 
mere  fact,  that  the  property  was  out  of  the  State  could  deprive  the  court 
of  the  power  to  act.  As  much  injustice  may  be  perpetrated  in  a  given 
case,  against  the  citizens  of  this  State,  by  going  out  of  the  jurisdiction 
and  committing  a  wrong,  as  by  staying  here  and  doing  it.  The  injustice 
does  not  lose  its  quality  by  being  committed  elsewhere  than  in  New- 
Hampshire,  and  as  the  legislature  has  conferred  upon  the  court  the 
power  to  issue  injunctions  whenever  it  is  necessary  to  prevent  injustice, 
it  is  the  duty  of  the  court  to  exercise  that  power  upon  the  presentation 
of  a  proper  case,  and  wdien  it  can  be  done  consistently  with  the  acknowl- 
edged practice  in  courts  of  equity.  As  the  principle  which  is  sought  to 
be  applied  here,  has  been  recognized  for  nearly  two  hundred  years,  we 
have  no  hesitation  in  holding,  that  the  court  has  jurisdiction  to  issue 
the  injunction  prayed  for.' 

'  On  a  bill  to  foreclose  a  mortgage  uj^on  lands  situated  partly  in  New  York 
and  partly  in  Pennsylvania,  the  Court  decreed  the  sale  of  the  mortgaged  prop- 
erty and  ordered  a  deed  to  be  given  to  the  purchaser  of  the  lands  situated 
without  the  jurisdiction — The  Court  said :  "The  plaintiffs  sought  by  fore- 
closure and  sale  to  enforce  a  mortgage  executed  by  the  defendant  corporation. 
The  Supreme  Court  had  jurisdiction  over  the  course  of  action  and  the  parties, 
and  its  decree  is  valid  although  part  of  the  premises  covered  by  it  are  in 
another  State.  Its  writ  may  not  be  operative  there,  nor  its  judgment  capable 
of  execution  as  against  that  portion  of  the  property,  and  for  that  reason  the 


246  DILLON  v.  HELLER  [part  i. 

DILLON  V.  HELLER. 

In  the  Supreme  Court  of  Kansas,  1888. 
[39  Kansas  599.] 

Action  brought  by  Martin  Heller  against  John  H.  Dillon,  to  quiet  the 
title  to  lot  number  10,  block  no  33,  in  the  city  of  Anthony,  in  Harper 
county.  Personal  service  of  summons  could  not  be  obtained  upon  the 
defendant  in  Kansas;  hence  the  plaintiff  filed  an  affidavit  for  service  of 
summons  by  publication.  The  notice  was  duly  published  for  the  speci- 
fied time. 

The  defendant  made  a  special  appearance,  and  moved  the  court  to 
quash  the  service  by  publication,  for  the  following  reasons,  to  wit : 

"  First,  that  the  same  does  not  run  in  the  name  of  the  state  of  Kansas ; 
second,  that  the  court  cannot  acquire  jurisdiction  of  the  person  in  these 
cases  to  quiet  title  by  such  service,  to  wit,  service  by  publication." 

On  January  23,  1887,  this  motion  was  overruled,  and  the  defendant 
making  no  further  appearance  in  the  case,  the  court  rendered  judgment 
as  upon  a  default  in  favor  of  the  plaintiff  and  against  the  defendant, 
quieting  the  plaintiff's  title  to  the  above-mentioned  real  estate,  and  for 
costs.    The  defendant  brings  the  case  to  this  court  for  review.^ 

Valentine,  J. :  The  plaintiff  in  error,  who  was  defendant  below, 
claims  that  the  court  below  erred  in  the  following  particulars  and  for 
the  following  reasons,  to  wit: 

"  1.  That  the  service  of  summons  by  publication  in  actions  to  '  quiet 
title '  is  not  sufficient  to  give  the  court  jurisdiction  of  the  party  defend- 
ant. 

"  2.  That  the  court,  not  having  jurisdiction  of  the  party  defendant, 
cannot  pronounce  judgment  in  the  matter.     *     *     *  " 

While  the  plaintiff  in  error  does  not  in  terms  claim  that  a  court 
cannot  in  any  case  where  the  defendant  is  a  non-resident  and  out  of  the 
state,  obtain  jurisdiction  to  hear  and  determine  the  case  by  virtue  of  a 
service  of  summons  only  by  publication,  yet  such  is  the  result  of  his 
argument;  and  in  support  of  such  argument  he  cites  a  number  of 
authorities,  the  principal  of  which  is  the  case  of  Hart  v.  Sa7isom,  110 
U.  S.  151.  We  do  not  think,  however,  that  the  authorities  cited  go  to  the 
extent  claimed  for  them.  Of  course  a  court  cannot  obtain  jurisdiction  of 
the  person  of  a  non-resident  defendant  by  means  only  of  a  service  of 
summons  by  publication,  nor  can  a  court  obtain  jurisdiction  of  the  per- 
son  of   any   person   who    is   a   non-resident    and   out   of   the   state,    by 

court  might  have  required  the  mortgagor  to  execute  a  conveyance  to  the 
purchascT  in  order  that  the  whole  security  offered  by  the  mortgage  should 
so  far  as  ijossihle  he  made  effective.    Muller  v.  Daws,  94  U.  S.  444,  450.    This 

'  The  Htatcinciit  of  facts  has  been  abridged. 


CHAP.  IV.]  DILLON  V.  HELLER  247 

any  kind  of  service,  or  by  any  kind  of  process  or  notice;  for  the  juris- 
diction of  the  courts  of  any  sovereignty  can  never  extend  beyond  the 
domain  of  the  sovereignty  which  creates  them.  (Amshaugh  v.  Exchange 
Bank,  33  Kas.  100,  105.)  No  court  in  Kansas  can  compel  a  non-resident 
defendant  out  of  the  state  to  come  within  its  territorial  boundaries,  or 
to  submit  himself  to  its  jurisdiction,  or  to  do  or  perform  any  other  act 
or  thing;  but  this  lack  of  power  on  the  part  of  the  court  does  not  depend 
upon  the  character  of  the  service  of  process  made  upon  the  defendant, 
but  it  arises  from  the  well-established  doctrine  that  the  jurisdiction  of 
one  sovereignty  (through  its  courts  or  otherwise)  cannot  extend  into 
the  territorial  boundaries  of  another  sovereignty.  Therefore,  for  the 
purposes  of  this  case,  it  will  be  admitted  that  the  court  below  did  not 
have  jurisdiction  of  the  person  of  the  defendant  below,  plaintiff  in  error. 
But  that  does  not  settle  this  controversy.  The  court  below  had  juris- 
diction of  something.  It  had  jurisdiction  of  the  plaintiff  below,  and  it 
had  jurisdiction  of  the  subject-matter  of  the  action.  This  latter  propo- 
sition, however,  is  questioned.  Jurisdiction  is  of  two  kinds:  jurisdiction 
of  the  person,  and  jurisdiction  of  the  property  or  thing  in  controversy; 
or,  in  other  words,  jurisdiction  in  personam,  and  jurisdiction  in  rem; 
and  jurisdiction  in  either  case  is  sufficient  to  authorize  a  valid  judgment 
to  be  rendered.  Now  it  may  be  admitted,  for  the  purposes  of  this  case, 
and  is  admitted,  that  the  old  equitable  action  to  quiet  title  to  real  estate 
was  purely  an  action  in  personam ;  and  indeed  it  will  be  admitted  that 
originally  every  action  in  equity  was  purely  an  action  in  personam,  but 
such  is  not  the  case  under  the  statutes  of  this  state,  and  such  is  not  the 
case  with  respect  to  the  present  action.  The  present  action  is  purely  a 
statutory  action  brought  by  the  plaintiff  under  §  594  of  the  civil  code, 
and  is  one  of  a  kind  of  actions  which  can  be  maintained  only  by  a  person 
who  is  in  the  actual  possession  of  the  property  in  controversy,  either  by 
himself  or  tenant.  Where  personal  service  of  sumn:ions  can  be  obtained 
in  such  an  action,  the  action  is  one  in  personam  as  well  as  in  rem  :  but 
Avhere  service  of  summons  can  be  had  only  by  publication,  then  the 
action  is  one  only  in  rem.  The  present  action  is  one  only  in  rem;  and 
the  court  below  had  ample  jurisdiction  to  hear  and  determine  the  same. 
For  the  present,  we  shall  assume  that  the  statutes  authorizing  service  of 
summons  by  publication  were  strictly  complied  with  in  the  present  case, 
and  then  the  only  question  to  be  considered  is  whether  the  statutes  them- 
selves are  valid ;  or,  in  other  words,  we  think  the  question  is  this : 
Has  the  state  any  power  through  the  legislature  and  the  courts,  or  by  any 
other  means  or  instrumentalities,  to  dispose  of  or  control  property  in  the 

was  not  done,  but  the  power  of  the  court  was  not  exhausted,  and  what  it 
might  have  ordered  in  the  first  instance,  it  could  still  require  by  aniendnient. 
The  order  appealed  from  goes  no  further  than  to  carry  out  the  intention  of 
the  parties  to  the  mortgage,  as  ascertained  by  the  decree — it  relates  to  a 
matter  within  the  jurisdiction  of  the  comt,  and  its  exercise  is  not  the  sub- 
ject of  review.     The  Union  Trust  Co.  v.  Olmsted   (1886)    102  N.  Y.  729. 


248  DILLON  v.  HELLER  [part  i. 

state  belonging  to  non-resident  owners  out  of  the  state,  where  such  non- 
resident owners  will  not  voluntarily  surrender  jurisdiction  of  their  per- 
sons to  the  state,  or  to  the  courts  of  the  state,  and  where  the  most  urgent 
public  policy  and  justice  require  that  the  state  and  its  courts  should 
assume  jurisdiction  over  such  property.  Power  of  this  kind  has  always 
been  exercised,  not  only  in  Kansas,  but  in  all  the  other  states.  Lands  of 
non-resident  owners,  as  well  as  of  resident  owners,  are  taxed  and  sold 
for  the  taxes;  and  the  owners  may  thereby  be  totally  deprived  of  such 
lands,  although  no  notice  is  ever  given  to  such  owners  except  a  notice  by 
publication  or  some  other  notice  of  no  greater  value,  force  or  efficacy. 
(Beehe  v.  Doster,  36  Kas.  666,  675 — 677.)  Mortgage  liens,  mechanics' 
liens,  material-men's  liens,  and  other  liens  are  foreclosed  against  non- 
resident defendants  upon  service  by  publication  only.  Lands  of  non- 
resident defendants  are  attached  and  sold  to  pay  their  debts;  and  indeed 
almost  any  kind  of  action  may  be  instituted  and  maintained  against 
non-residents  to  the  extent  of  any  interest  in  property  which  they  may 
have  in  Kansas,  and  the  jurisdiction  to  hear  and  determine  in  this  kind 
of  cases  may  be  obtained  wholly  and  entirely  by  publication.  {Gillespie. 
V.  Thomas,  23  Kas.  138;  WallcenJiorst  v.  Lewis,  2i  id.  420;  Rowe  v. 
Palmer,  29  id.  337;  V enable  v.  Dutch,  37  id.  515,  519.)  All  the  states 
by  proper  statutes,  authorize  actions  against  non-residents,  and  service 
of  summons  therein  by  publication  only,  or  service  in  some  other  form 
no  better;  and  in  the  nature  of  things  such  must  be  done  in  every  juris- 
diction, in  order  that  full  and  complete  justice  may  be  done  where  some 
of  the  parties  are  non-residents.  We  think  a  sovereign  state  has  the 
power  to  do  just  such  a  thing.  All  things  within  the  territorial  bounda- 
ries of  a  sovereignty  are  within  its  jurisdiction;  and  generally,  within  its 
own  boundaries,  a  sovereignty  is  supreme.  Kansas  is  supreme  except  so 
far  as  its  powers  and  authority  are  limited  by  the  constitution  and 
laws  of  the  United  States.  And  within  the  constitution  and  laws  of  the 
United  States  the  courts  of  Kansas  may  have  all  the  jurisdiction  over  all 
persons  and  things  within  the  state,  which  the  constitution  and  laws  of 
Kansas  may  give  to  them,  and  the  mode  of  obtaining  this  jurisdiction 
may  be  prescribed  wholly,  entirely  and  exclusively  by  the  statutes  of 
Kansas.  To  obtain  jurisdiction  of  anything  within  the  state  of  Kansas, 
the  statutes  of  Kansas  may  make  service  by  publication  as  good  as  any 
other  kind  of  service.  In  the  present  case  the  plaintiff  resides  within 
the  state  of  Kansas,  and  he  virtually  surrendered  jurisdiction  of  himself 
to  the  court  below  when  he  commenced  this  action.  lie  is  in  the  actual 
possession  of  the  property  in  controversy,  and,  being  in  the  actual 
possession  thereof,  he  also  in  effect  surrendered  jurisdiction  thereof  to 
the  court  when  he  brought  this  action,  and  as  much  jurisdiction  thereof 
as  any  court  in  any  action  could  obtain  by  virtue  of  a  seizure  of  the 
property  by  its  o\v7i  officers;  and  service  of  summons  by  publication,  as 
authorized  by  law,  was  afterward  had  in  this  case;  and  this  gave  the 
court  the  power  to  hear  and  determine  the  case,  and  to  render  a  judg- 


CHAP.  IV.]  DILLON  V.  HELLER  249 

ment  therein,  and  to  enforce  such  judgment;  and  this  is  all  that  is 
necessary  to  give  complete  and  absolute  jurisdiction  over  the  thing  in 
controversy.  Jurisdiction  is  simply  the  power  to  hear  and  determine 
and  to  enforce  the  judgment,  order  or  decree  made  or  rendered  on  such 
hearing.  Nothing  can  be  lacking  in  the  present  case.  The  court  had 
the  power  to  hear  and  determine  the  case,  the  power  to  render  the  judg- 
ment prayed  for,  which  was  to  quiet  the  plaintiff's  title  and  possession; 
and  he  was  in  the  actual  possession  of  the  property ;  and  as  the  propertj"- 
was  and  is  within  the  territorial  jurisdiction  of  the  court,  there  would 
seem  to  be  no  good  reason  why  the  judgment  is  not  valid  and  why  the 
court  cannot  enforce  such  judgment.  It  is  said  in  the  case  of  Hart  v. 
Sansom,  110  U.  S.  155,  that  "  the  courts  of  the  state  may  perhaps  feel 
bound  to  give  effect  to  the  service  made  as  directed  by  its  statutes;" 
and  also :  "  It  would  doubtless  be  within  the  power  of  the  state  in  which 
the  land  lies  to  provide  by  statute  that  if  the  defendant  is  not  found 
within  the  jurisdiction,  or  refuses  to  make  or  to  cancel  a  deed,  this  should 
be  done  in  his  behalf  by  a  trustee  appointed  by  the  court  for  that  pur- 
pose." Now  certainly  no  court  would  feel  bound  to  give  effect  to  a 
statute  unless  the  court  believed  the  statute  to  be  valid  and  an  existing 
law,  and  if  the  state  may  rightfully  provide  by  statute  that  any  one  of 
its  courts  may  authorize  a  trustee  to  make  or  cancel  a  deed  executed  by 
or  for  a  non-resident,  or  in  which  a  non-resident  is  interested,  then 
the  state  could  unquestionably  authorize  the  same  court  by  its  judgment 
alone,  to  cancel  or  in  effect  to  create  the  deed,  for  the  trustee  appointed 
by  the  court  is  the  mere  creature  of  the  court  and  can  take  no  power  nor 
exercise  any  power  except  such  as  emanates  from  the  court  itself. 
There  can  certainly  be  no  necessity  for  the  circuitous,  indirect  and 
cumbrous  mode  of  appointing  a  trustee  to  do  a  thing,  when  the  judgment 
of  the  court  may  itself  answer  the  entire  purpose.  (See  Civil  Code,  § 
400.)  If  jurisdiction  cannot  be  given  to  the  court  to  render  such  a 
judgment,  then,  a  fortiori,  jurisdiction  could  not  be  given  to  the  court 
to  appoint  a  trustee  for  such  a  purpose.  A  court  without  jurisdiction 
cannot  do  anything — not  even  to  appoint  a  trustee.  We  think  the  court 
below  had  ample  jurisdiction  in  the  present  case.  "We  think  a  court 
may  in  any  case,  where  the  statutes  authorize  the  same,  obtain  jurisdic- 
tion upon  service  by  publication  concerning  anything  present  and  exist- 
ing within  the  boundaries  of  the  state.  To  hold  otherwise  would 
unsettle  and  overturn  a  great  many  titles  to  land  in  this  state — titles 
which  have  long  been  acquiesced  in  and  supposed  to  be  good  and  valid, 
and  to  be  settled  and  established  by  the  statutes  and  by  numerous  judi- 
cial decisions.  And  to  hold  otherwise  would  also  do  great  injustice  to 
innocent  purchasers  of  lands  who  hold  the  same  under  such  titles.  We 
think  such  titles  are  good. 


250  CAMPYN  PYNELL'S  CASE  [part  i. 

CAMPYN  PYNELL'S  CASE. 
In  Chancery,  1396-1399. 

\_Select  Cases  in  Chancery,  10  Selden  Society  No.  18.]  * 

To  the  most  honoured  Lord  and  most  reverend  Father  in  God,  the 
Bishop  of  Exeter,  Chancellor  of  England." 

Beseecheth  humbly  Campyn  Pynell,  Merchant  of  Lucca  in  Lombardy, 
who  is  staying  in  this  country  under  the  protection  of  our  most  dread 
Lord  the  King,  that  whereas  one  Richard  Underwood,  tailor  of  London, 
by  malice  and  evil  design  hath  feigned  divers  suits  against  him,  to  wit, 
a  writ  of  trespass  in  taking  away  his  wife  and  his  goods,  returnable  in 
the  King's  Bench  at  Nottingham  on  the  quindene  of  S.  Hillary  in  the 
19th  year  of  our  Lord  the  King  who  now  is  [139G],  for  which  writ  the 
said  suppliant  was  taken  by  the  Sheriffs  of  London  and  put  to  fine  and 
ransom  to  be  mainprised  to  keep  his  day  at  Nottingham  on  the  said 
quindene  of  S.  Hillary;  on  which  day  the  said  Richard  was  nonsuited; 
and  afterwards  the  said  Richard  sued  another  writ  of  trespass  touch- 
ing the  same  matter  against  the  said  suppliant,  returnable  in  the  King's 
Bench  at  Lincoln  on  the  quindene  of  Easter  in  the  19th  year  of  our 
said  Lord  the  King  [1396],  for  which  the  said  suppliant  was  taken  and 
imprisoned  by  the  Sheriffs  of  London  at  that  time,  and  put  to  fine  and 
ransom  to  be  mainprised  to  keep  his  day  in  the  said  King's  Bench;  on 
which  day  the  said  suppliant  [appeared]  in  his  proper  person,  and  the 
said  Richard  counted  against  the  said  suppliant  for  his  wife  and  his 
goods  taken  away,  which  surmise  the  said  suppliant  traversed,  whereupon 
issue  was  joined  between  them,  and  the  said  suppliant  [sued  out]  a  venire 
facias  directed  to  the  Sheriffs  of  London  [with  clause  of]  habeas  corpora, 
and  process  by  distress  against  the  jurors  for  divers  days,  as  is  clearly 
proved  by  the  process  thereof;  and  at  last  the  said  suppliant  sued  a 
nisi  prills  before  Hugh  IIuls,  one  of  the  Justices  of  the  King's  Bench, 
on  a  certain  day  at  S.  Martin's  in  London ;  on  which  day  the  said  Rich- 
ard was  non-suited;  and  afterwards  the  said  Richard  hath  sued  divers 
plaints  before  the  Sheriffs  of  London  for  the  same  matter,  on  which 
plaints  the  said  suppliant  hath  been  arrested  and  imprisoned  and  put 
to  fine  and  ransom  for  his  deliverance;  and  every  time  when  the  said 
suppliant  appeared  in  Court  to  answer,  the  said  Richard  was  nonsuited: 
!iiid  now  of  late  the  said  Richard  hath  feigned  two  plaints  against 
the  said  suppliant,  which  are  still  pending,  by  which  the  said  Richard 
purfKJseth  by  the  assistance  of  divers  of  his  maintainors  to  await  the 
said  sni)pliaiit  with  jurors  i)rocured  and  not  indifferent  to  the  said  mat- 

'  Karly  Chancery  Proccc(Jinf,'H,  Bundle  3,  No.  38. 
^  Edmund  de  Stafford. 


CHAP.  IV.]  RUSSELL  AND  WIFE  v. 251 

ter,  to  wit,  of  his  wife  and  goods  taken  away,  whereas  the  said  wife 
was  divorced  from  him  because  of  a  pre-contract,  and  the  divorce  was 
solemnly  pronounced  before  the  ordinaries  of  my  Lord  the  Bishop  of 
London :  May  it  please  you  of  your  especial  grace  of  this  matter  to  or- 
dain a  remedy,  so  that  the  said  suppliant  be  not  destroyed  and  annihilated 
for  ever  by  so  being  annoyed,  imprisoned  and  put  to  costs  without  any 
cause;  for  God  and  in  way  of  Charity. 


RUSSELL  AND  WIFE  v. 


und  liU^-'^ 


fuli 


In  the  Kinc/s  Bench,  1483.  ^44'  !^  ^**^  / 

[Year  Book,  22  Edward  IV,  folio  37. y         \     ^^^^  J"^/-"    *     Sj. 

In  the  King's  Bench  one  Thomas  Russell  and  Alice  his  wife  brought 
a  writ  of  trespass  of  the  goods  of  the  said  Alice  carried  off  dum  sol 
fuit:  and  the  defendant  comes  and  pleads  not  guilty:  and  was  found 
guilty  with  damages  £20  by  inquest  at  Nisi  Prius:  and  before  the  day  \yMt^  1 
in  bone  an  injunction  was  issued  out  of  the  Chancery  against  the  plain- 
tiffs, that  they  should  not  proceed  to  judgment  under  pain  of  £100: 
wherefore  the  judgment  was  stayed  for  a  long  time.  And  then  Ilussey, 
the  Chief  Justice  [K.  B.],  demanded  of  Spilman  and  Finch  [eden], 
who  were  with  the  plaintiffs,  if  they  were  willing  to  pray  judgment  ac- 
coi'ding  to  the  verdict.  Finch  [eden].  [Yes]  :  unless  [it  was]  for  doubt  of 
the  pain  comprised  in  the  injunction  or  for  doubt  of  imprisonment  of 
our  client  for  nonobedience  to  the  Chancellor,  otherwise  we  are  willing 
to  pray  judgment.  Fairfax  [J.  Jv.  B.]  Notwithstanding  the  injunction 
he  may  pray  judgment :  for  if  the  injunction  was  against  the  plaintiff 
himself,  then  his  attorney  might  pray  judgment,  or  e  contra.  Hussey. 
We  have  communed  of  this  matter  amongst  ourselves:  and  see  not  any 
harm  which  can  come  to  the  party,  if  he  prayed  judgment  against  him : 
for — that  he  should  have  [again]  the  sum  contained  in  the  injunction — 
the  law  would  not  be  willing  to  denj'  him  this — I  well  know:  [the  plain- 
tiff T.  R.  shall  recover  again  the  penalty  he  may  be  compelled  to  pay  for 
the  breach  of  the  injunction]  :  then  there  is  nothing  else  except  im- 
prisonment in  the  Fleet.  And  as  to  that,  if  the  Chancellor  commits  a 
man  to  the  Fleet,  as  long  as  you  are  there  [pleaders  in  this  Court],  if 
you  will  give  us  cognizance  [of  it]  we  will  issue  a  habeas  corpus  return- 
able before  us,  we  will  dismiss  him :  and  so  he  shall  not  [be  put]  to  great 
mischief ;  and  all  that  we  can  do  for  him,  we  will  do :  But  notwithstand- 
ing this,  Fairfax  said  he  would  go  to  the  Chancellor  [Thomas  of  Rother- 

'  The  case  is  printed  as  translated  by  ]\Ir.  C.  P.  Cooper  in  1  C.  P.  Cooper's 
Reports  561. 


252  CEOWDER  v.  ROBINSON  [part  i. 

cham],  and  ask  of  him  that  he  would  dismiss  the  injunction:  and  thus 
[the  phiintiff]  demanded  judgment:  and  they  had  [judgment]  that 
they  should  recover  their  damages  taxed  by  the  inquest:  but  they  [the 
judges]  would  not  give  judgment  [that  the  plaintiffs]  should  have  dam- 
ages for  the  vexation  in  the  Chancery  by  that  injunction:  and  they  [the 
judges]  said,  that  if  the  Chancellor  would  not  dismiss  him  [the  plaintiff 
T.  R.]  from  the  injunction,  that,  notwithstanding  that,  they  would 
have  given  judgment,  if  the  party  wished  to  pray  for  it:  quod  nota,  &c. 


COTES  V.  PRESTON. 

In  Chancery,  1558-59. 

[Choyce  Cases  in  Chancery  109.] 

A  writ  is  awarded  against  the  Defendant,  his  Councellors  and  At- 
torneys, that  they  upon  penalty  of  1001.  shall  sue  no  execution  of  a 
Judgment  in  an  action  of  debt  commenced  by  the  Defendant  against  the 
Plaintiff  at  the  Common  Law,  until  further  order  be  taken  therein  by 
this  Court  of  Chancery. 


CROWDER  V.  ROBINSON. 

In  Chancery,  1577-78. 

{^Choyce  Cases  in  Chancery  115.] 

An  injunction  was  awarded  against  the  defendant  for  stay  of  an  Ac- 
tion of  the  Case  upon  an  Assumpsit  by  him  brought  in  her  Majesties 
Bench  against  the  plaintiff  for  or  concerning  an  agreement  or  con- 
tract for  a   Lease  for  the  which  before  the  plaintiff  had  exhibited  his  bill.* 

'  Chancery  freely  granted  injvinetions  as  to  actions  in  all  other  courts. 
Tothill  113,  114,  notes  the  following:  Anonymous  (1587),  stay  of  proceedings 
in  a  spiritual  court;  Aylett  v.  Aylett  (1590),  stay  of  proceedings  in  the  Arches 
of  Admiralty;  Smith  v.  Snotsbull  (1590-91),  stay  of  proceedings  in  Court 
of  Wards;  Fisher  v.  Payne  (lfi30-31),  Parker  v.  Boioers,  Uvedale  v.  Uarvy, 
Bcamont  v.  Harry  (circa  1631-33),  Tanfield  v.  Davenport  (1638-39)  stay  of 
proceedings  in  the  Ecclesiastical  Court;  Catwallell  v.  Wynn  (1593),  stay  of 
jiHlgriient  and  execution  in  the  Exchequer;  Trcsirell  v.  Ouihon  (1633-34),  stay 
of  i)roceedings  in  the  Exchequer. 

Restraints  have  also  been  issued  against  suing  in  the  courts  of  Ireland, 
Ijord  Portarlinf/ton  v.  Houlhy  (1834)  3  Myl.  &  A'.  104,  Scotland,  Kennedy  v. 
I'jarl  of  CassiUiN  (1818)  2  Swanst.  313,  and  in  a  foreign  court.  Bunbury  v. 
Bunbury   (1839)   3  Jurist  644. 


CHAP.  IV.]  CAELETON  v.  BRIDGMAN  253 

ALLEN  V.  DINGLEY. 

In  Chancery,  1577. 

{Choyce  Cases  in  Chancery  113.] 

Forasmuch  as  Mr.  Dr.  Yale,  one  of  the  Masters  of  this  Court,  to 
whom  the  consideration  of  a  contempt  in  the  breach  of  an  Injunction 
was  committed  by  Master  Serjeant  Powtrel  was  referred,  hath  made 
report  that  the  said  Serjeant  Powtrel  after  the  open  publishing  of  the 
same  Injunction,  and  after  perfect  knowledge  thereof  did  move  at  the 
Kings  Bench-Jiarre  for  Judgment  for  the  Defendant  iterating  his  mo- 
tion for  the  same,  which  he  did  after  the  sight  of  the  said  Injunction. 
Therefore  the  said  Mr.  Serjeant  Powtrel  being  this  present  day  called 
into  this  Court  is  openly  enjoyned  in  the  sum  of  one  hundred  pounds,  not 
to  depart  out  of  the  Town  until  he  shall  be  licensed  thereunto  by  the 
Right  Honourable  the  Lord  Keeper  of  the  Great  Seal  of  England. 


HARTOP  V.  HARTOP. 

In  Chancery,  1595. 
[Choyce  Cases  in  Chancery  37.] 

An   Exchequer  Injunction   disallowed,   and   the    party  that   procured 
it  sent  for  by  a  Pursevant,  and  committed. 


CARLETON  v.  BRIDGMAN. 

In  Chancery,  1595. 

iTothill  153.] 

Because  Master  Bridgman  served  a  clerk  in  Master  Shugborough's 
office,  a  commandment  from  *  *  *  to  stay  here,  he  was  committed 
to  the  prison  of  the  Fleet,  at  the  suit  of  Carleton  *  *  *  with  the 
opinion  of  the  Court  that  no  court  can  hinder  the  point  of  equity  of 
this  Court.' 

^  "Morgan  v.  Richardson  and  al.,  the  plaintiff  having  a  \ATit  of  privilege, 
was  taken  in  execution,  ordered  to  go  abroad  by  habeas  corpus,  and  the  party 


254  HEATH  v,  KYDLEY  [pakt  i. 

I 

<*-^  L  Vj^.   A^  HEATH  V.  RYDLEY. 

.  \  y^  „  In  the  King^s  Bench,  1613. 

21         -^  \C voice's  James   335.] 

-■         '  .  .  , 

In  an  action  of  debt  at  the  common  law,  judgment  being  against  the 
defendant,  and  day  given  to  move  in  arrest  thereof,  he  in  the  interim 
preferred  his  bill  in  chancery,  and  obtained  an  injunction  to  stay  judg- 
ment and  execution:  but,  notwithstanding,  the  Court  granted  both;  for 
by  the  statutes  of  27.  Edw.  3.  c.  1.  and  4.  Hen.  4.  c.  23.  after  judgment 
given  (be  it  in  plea  real  or  personal),  the  party  ought  to  be  quiet,  and 
to  submit  thereto;  for  a  judgment  being  once  given  in  curia  domini 
regis,  ought  not  to  be  reversed  nor  avoided  but  by  error  or  attaint.  And 
in  the  same  Term,  upon  a  prohibition  to  stay  proceedings  in  the  court  of 
requests,  it  was  delivered  for  a  general  maxim  in  law.  That  if  any  court 
of  equity  should  intermeddle  with  any  matters  properly  triable  at  the 
common  law,  or  which  concern  freehold,  they  are  to  be  prohibited;  for 
neither  writ  of  error  nor  attaint  can  be  brought  to  reverse  the  decrees 
made  in  those  courts:  otherwise  it  is  upon  trials  at  the  common  law; 
for  all  matters  are  there  decided  either  by  a  jury  of  twelve  men,  against 
whom  (if  they  err  in  their  verdict)  an  attaint  lieth;  or  by  the  Judges, 
where  if  they  err  in  their  judgment,  the  party  grieved  may  bring  his 
writ  of  error.' 

that  arrested  him  to  be  committed,  about  Hil.  17  or  18  Jac.  (1620-21)."  Tot- 
hill  154.  And  see  generally  the  cases  under  "Privilege  in  Chancery."  Tothill 
152  et  seq. 

"Inter  Graham  and  Stone,  M  9  Jac.  Stone,  pleaded  privilege  of  the  Exchequer 
the  Chaneellour  said,  no  Exchequer  man  is  privileged  against  the  Chancery,  nor 
the  Lord  Bacon  himself,  except  the  matter  concern  the  King,  and  said,  that 
if  the  defendant  did  endeavor  to  get  an  Injunction  (as  was  informed)  to 
stop  this  Court,  he  would  commit  him,  and  said  he  woi:ld  know  those  lawyers 
that  occupy  their  wits  to  justle  .Jurisdictions  of  Courts  together."  Choyce  Ca. 
in  Ch.  -M. 

"The  sul)poena,  as  a  writer  of  the  time  of  James  I.  says  speaking  of  in- 
junctions to  stay  proceedings  at  law,  is  directed  to  the  party,  not  to  the 
justices,  to  surcease,  Treatise  of  Subpoena,  Hargr.  L.  Tr.  333.  There  are,  how- 
ever, some  instances  of  irregularities  in  this  respect.  In  a  case  where  the 
judges  had  warned  a  plaintiff  .lot  to  proceed  in  an  action  in  defiance  of  an 
injunction.  Lord  C'.  Bromley  ordered  the  Clerk  of  Assize  not  to  return  the 
postea,  Reg.  L.  A.  l.')82,  fo.  19." — 1  Spence  Jurisdiction  of  Court  of  Chanccrij 
420,  n.    (h). 

'"The  most  fic(|uciit  exercise  of  tlie  jurisdiction  of  the  Court  in  granting 
injunctions,  was  to  restrain  proceedings  at  law.  It  must  have  been  very 
so(m  found  that  without  such  an  interference,  it  would  be  impossible  for  the 
court  to  carrv  out  the   jurisdiction  it  had  assumed,  of  controlling  the  law  on 


CHAP.  IV.]  GRAVENOR  v.  RAKE  255 


B. — TuERE  IS  NO  Right  Without  a  Remedy.* 


GRAVENOR  v.  RAKE. 

In  Chancery,  1588. 

{TotUll  3.] 

The  court  compels  the  lord  to  admit  a  tenant  copyholder  to  sue  at  law, 
without  any  forfeiture  of  his  copyhold. 

the  principles  of  equity  and  conscience.  Accordingly,  from  the  time  of  Henry 
VI.  downwards  we  find  numerous  instancss  of  the  granting  of  such  injunc- 
tions. These  injunctions  were  enforced  not  only  against  the  parties  and  their 
solicitors,  but  their  counsel  also,  as  we  learn  from  the  cases  of  Serjeants 
Glanvil  and  Powtrel,  and  of  "Master  Robert  Snagg."  The  Chancellors  having, 
as  before  noticed,  perservered  in  granting  injunctions  to  restrain  proceedings 
at  law  even  after  judgment ;  their  right  was  vehemently  opposed  in  the  time 
of  Edw.  IV.  In  one  case,  21  Edw.  IV.,  Fairfax  held  that  the  Court  of  King's 
Bench  had  the  power  of  granting  injunctions  to  restrain  parties  from  re- 
sorting to  any  means  of  delaying  actions,  even  before  judgment,  in  cases 
within  the  jurisdiction  of  the  Courts  of  Common  Law;  but  the  Court  of 
Chancery,  as  we  learn  from  subsequent  authorities,  still  continued  to  re- 
strain proceedings  at  law  by  action  on  the  case,  where  a  bill  was  filed  in  that 
court  for  specific  performnce.  In  the  22  Edw.  IV.,  Hussey,  C.  J.,  of  the 
King's  Bench,  and  Fairfax,  J.,  in  the  case  then  before  them,  declared,  that  as 
for  the  penalty  that  could  not  be  recovered,  and  if  the  Chancellor  should 
commit  any  of  the  parties,  the  judges  would  release  them  on  their  being 
brought  up  before  them  by  habeas  corpus:  Fairfax,  however,  said  he  would 
go  to  the  Chancellor,  and  endeavor  to  persuade  him  to  withdraw  the  in- 
junction ;  but  the  Chancellor  appears  to  have  been  inflexible,  and  the  exercise 
of  the  jurisdiction  was  continued. 

"The  jealousy  of  the  common  law  judges  against  this  jurisdiction  displayed 
itself  again  in  the  reign  of  Henry  VIII.;  indeed  Wolsey,  when  Chancellor, 
appears  to  have  been  rather  unscrupulous  in  granting  injimctions.  Sir 
Thomas  More  endeavored,  by  a  conference  with  the  judges,  to  allay  this  jeal- 
ousy; however  it  broke  forth  again  in  the  reign  of  Elizabeth,  and  a  barrister 
was  indicted  in  the  Court  of  King's  Bench  under  the  statute  if  praemunire, 
for  exhibiting  a  bill  in  Chancery  for  an  injunction  after  judgment  at  law 
in  that  court. 

"In  the  reign  of  James  I.  there  was  an  open  rupture  between  Lord  Ellesmere 
and  Lord  Coke,  as  to  the  right  of  the  Court  of  Chancery  to  grant  injunctions 

'  "To  this  maxim  may  be  generally  referred  all  the  enabling  doctrines  of 
equity,  and  especially  those  not  referable  to  any  other  particular  maxim.  Its 
earliest  and  boldest  application  was  in  the  foundation  of  the  great  system 
of  trusts,  which  constitutes  a  large  portion  of  equity  jurisdiction." — Phelps, 
Juridical  Equity  §  103. 


256  ROSWELL'S  CASE  [part  i. 

ROSWELL'S  CASE. 

In  Chancery,  1567. 

[Dyer  263  b.] 

A  woman,  tenant  for  a  term  of  life  of  a  copyhold  parcel  of  the  manor 
of  Torels  Preston,  took  an  husband,  and  the  reversion  of  the  said  copy- 
hold was  granted  to  three  for  the  term  of  their  lives  successively,  ac- 
cording to  the  custom  of  the  manor.  And  afterwards  the  husband  of 
the  said  woman  made  a  surrender  to  the  use  of  the  first  of  the  said  re- 
versions for  the  term  of  his  life,  and  so  he  was  admitted  tenant;  and 
afterwards  he  died  and  the  second  in  reversion  likewise;  and  the  third 
(living  the  husband,  and  his  wife  who  made  no  surrender)  prayed  to  be 
admitted  to  the  copyhold.'  *  *  *  But  the  case  was  further,  that 
the  husband  and  wife  would  release  all  the  right  of  the  wife  to  the  sur- 
viving revisioner:  and  the  lord  would  not  receive  it  or  hold  a  court  for 
it,  Quwre,  Whether  he  shall  not  be  bound  in  conscience  to  do  it?  But 
in  the  next  Michaelmas  Term  it  was  decreed  and  ordered  that  the  lord 
should  hold  his  court  &c.  or  avoid  the  possession.^ 

after  judgment.  That  sovereign  took  upon  himself  to  settle  the  matter.  For 
that  purporje  he  desired  the  attorney-general,  (Sir  F.  Bacon,  and  the  king's 
counsel  to  certify  v.hat  had  been  the  ancient  practice  in  the  time  of  his  pre- 
decessors. They  accordingly  certified,  that  in  the  time  of  Henry  VII.,  Henry 
VIII.,  Edw.  VI.,  and  Mary  and  Elizabeth,  there  had  been  a  gi'eat  many  in- 
junctions granted  after  judgment  in  actions  of  different  natures,  real  and  per- 
sonal, in  the  king's  several  Courts  of  the  King's  Bench,  Common  Pleas,  and 
the  Justices  in  Eyre.  King  James  (14th  July,  161G),  on  this  certificate 
ordered,  that  thenceforth  the  ancient  practice  as  so  certified  should  be  con- 
tinued. In  165.5,  the  Lords  Commissioners  held,  that  where  there  was  an  original 
equity  arising  out  of  the  natures  of  the  transaction,  which  was  not  properly 
cognizable  at  law,  that  the  party  was  not  estopped  by  the  verdict  from  seek- 
ing relief  in  the  Court  of  Chancery;  and  the  Court  has  since  interfered,  even 
after  execution  executed."   1  Spence,  Juris,  of  Court  of  Chancery  673  et  seq. 

For  a  fuller  account  of  the  rupture  between  Sir  Edward  Coke  and  Lord  EUes- 
mere  and  the  resultant  and  final  triumph  of  equity  see  Wilson's  Life  of  James 
I,  94,  95;  2  Campbell's  Lives  of  the  Chancellors,  241  et  seq;  and  especially  a 
learned  note  by  Francis  Ilargrave  to  Crowley's  Case  (1818)  2  Swanston,  1, 
24-28. 

See  Phelps'  charming  monograph,  Falstaff  and  Equity  (1901),  on  the 
struggle  between  Courts  of  Law  and  the  High  Court  of  Chancery,  and 
the  elaborate  interpretation  and  illustration  of  Falstaff's  "gag":  "Come, 
my  masters,  let  us  share  and  tlicn  to  horse  before  day.  And  the  Prince  and 
Poins  be  not  two  arrant  cowards,  there's  no  equity  stirring.  There's  no  more 
valor  in  that  Poins  than  in  a  wild  duck." 

'  A  part  of  the  case  has  been  omitted. 

'"Toncliiiig  copylioldcrs,  Mr.   Fitzherhcrt  in   his  Naiura  Brevium,  folio  12, 


CHAP.  IV.]  FORD  V.  HOSKINS  257 

FORD  V.  HOSKINS. 

In  the  Kino's  Bench,  1615. 

[CroTce's  James  368.] 

Action  on  the  case  against  the  defendant,  being  lord  of  the  manor  of 
Beaminster,  in  the  county  of  Dorset.  Whereas  John  Ford  was  copy- 
holder for  life  of  the  said  manor  (where  the  custom  of  the  manor  is, 
that  a  copyholder  for  life  may  nominate  his  successor  to  have  it  for  life, 
and  that  such  a  person  nominated  should  compound  with  the  lord  for 
his  fine;  and  if  lie  could  not  compound,  then  he  should  give  such  a  fine 
as  the  homage  of  the  manor  should  assess,  and  should  be  admitted,  and 
hold  for  his  life)  ;  and  alledgeth  in  fact,  that  his  father  nominated  him 
his  successor  to  have  for  life,  and  died;  that  he  tendered  for  his  compo- 
sition, and  could  not  be  accepted;  whereupon  the  homage  assessed  a  fine 
of  forty  shillings,  which  he  tendered  to  pay,  and  the  defendant  would  not 
accept  thereof,  nor  admit  him,  whereby  he  lost  the  benefit  thereof,  nor 
could  sell  it;  and  thereupon  he  brought  the  action.  The  defendant 
pleaded  not  guilty;  and  it  was  found  against  him. 

It  was  now  moved  in  arrest  of  judgment,  that  this  action  lies  not; 
for  although  it  hath  been  alledged  that  this  custom  pretended  is  good, 
yet  forasmuch  as  he  who  is  so  nominated  hath  not  jus  ad  rem  nee  jus  in 
re  until  admittance,  and  a  copyholder,  in  the  eye  of  the  law,  is  but 
tenant  at  the  lord's  will,  if  the  lord  will  not  hold  court,  he  hath 
no  remedy  to  compel  him  to  admit  him,  but  by  order  of  chancery,  as  4. 
Co.  28.  b.  Westwich's  Case.    32.  Hen.  6.  pi.  3.  Lit.  fal.  3. 

The  Court  held,  that  the  action  lay  not,  for  he  hath  not  any  interest 
therein :  and  it  would  be  infinite  if  every  copyholder,  upon  pretence  of 
refusal,  should  have  an  action,  for  then  the  lord  at  his  peril  ought  to 
admit ;  which  would  be  mischievous :  and  there  never  was  any  action 
brovTght  before  these  times  against  a  lord  of  a  manor  for  non-admittance ; 

.noteth  well,  that  forasmuch  as  he  cannot  have  any  writ  of  false  judgment, 
nor  other  remedy  at  common  law  against  his  lord,  therefore  he  shall  have 
aid  in  Chancery;  and  therefore  if  the  lord  will  put  out  his  copyholder  that 
payeth  his  customs  and  services,  or  will  not  admit  him  to  whose  use  a  sur- 
render is  made,  or  will  not  hold  his  court  for  the  benefit  of  his  copyholder, 
or  will  exact  fines  arbitrary,  where  they  be  customary  and  certain,  the  copy- 
holder shall  have  a  subpoena  to  restrain  or  compel  him  as  the  case  shall  re- 
quire.   Dyer,  264,  and  224.    Fits.  Subpoena,  21." — Gary  4. 

Francis  states  the  maxim  ''Equity  suffers  not  a  Right  to  be  without  a 
Remedy,"  with  the  following  note :  ''Note  the  Rights  here  intended,  are  those 
which  the  Law  acknowledges  to  be  such ;  and  never  gives  judgment  against 
them,  tho'  it  cannot  give  a  Remedy  for  them;  and  not  equitable  Rights,  for 
which  Equity  gives  a  Remedy  in  the  very  creation  of  them."  Maxims  of 
Equity  24. 


258  MAYOR  OF  LONDON  et  al.  v.  SLAUGHTER      [part  i. 

but  always  the  remedy  against  the  lord  was  only  in  chancery:  where- 
fore there  is  not  any  reason  to  give  allowance  to  such  framed  actions, 
newly  devised.  It  was  therefore  adjudged  for  the  defendant.  Yide  14 
Hen.  8.  pi.  246.  N.  B.  47.  A.  that  action  on  the  case  lies  against  an  arch- 
deacon for  not  inducting. 


NEWLY  V.  CHAMBERLAINE. 

In  Chancery,  1629-30. 

[Tothill  3.] 

The  Court  compels  a  lord  to  admit  a  tenant.^ 


MAYOR  OF  LONDON  et  al.  v.  SLAUGHTER. 

In  Chancery,  before  Lord  Keeper  Bridgeman,  1671. 

[1  Cases  in  Chancery  203.] 

The  bill  was  to  bring  in  one  that  lived  out  of  the  jurisdiction  of 
London,  to  come  and  give  security  to  the  city  for  the  orphan's  portion, 
according  to  the  custom  of  the  city. 

The  defendant  in  his  answer  offers  to  do  as  this  court  should  direct,  but 
being  no  freeman,  would  not  be  subject  to  the  city  orders. 

The  Recorder.  This  court  useth  to  assist  the  city  in  such  like  cases, 
and  on  petition  useth  to  grant  subpoena's  to  persons  to  appear  before 
the  mayor  in  his  court,  and  cited  a  precedent  28th  February,  3  Jac.  Fish 
and  Cole's  ease,  of  a  subpoena  out  of  the  subpoena  office. 

Maynard  for  the  defendant.  This  custom  concerns  the  country  as  well 
as  the  city,  and  must  be  tried  by  verdict;  and  it  is  inconvenient  for 
country  gentlemen  to  be  put  to  give  security  to  the  orphans'  court  by 
recognizance. 

The  Lord  Keeper  decreed  the  plaintiffs  to  try  the  custom.' 

'Tothill  2,  3,  also  notes  two  other  cases  to  the  same  effect:  Lunsford  v. 
Popham  and  March  v.  Gage. 

'"But  though  the  Chancery  will  assist  the  jurisdiction  of  inferior  Courts 
in  the  doing  of  what  is  Just  and  Right;  yet  if  there  will  likely  be  a  Failure 
of  Justico,  Equity  will  prohibit  their  proceedings  and  restrain  their  Juris- 
diction as  in  1  R(jll.  Ahr.  .'574.  PI.  4.  12  Co.  113.  Max.  Eq.  25,  26."  Reporter's 
Note,   fol.  ed.   1735. 

And  see  Edward's  Case    (ICIO)    Lane  98. 


CHAP.  IV.]  LOKER   V.  ROLLE  259 

CHAMPERNOON  v.  GUBBS. 
In  Chancery,  before  Lord  Keeper  Wright,  1700. 

[2  Vernon  382.]  ' 

The  plaintiff  on  her  marriage  had  a  rent-charge  of  one  hundred  and 
twenty  pounds  per  ann.  settled  on  her  in  lieu  of  a  jointure,  with  power  of 
distress;  and  there  being  no  less  than  five  hundred  pounds  arrear,  and  no 
sufficient  distress  to  be  found  on  the  land;  the  bill  was  against  the  devi- 
see of  the  inheritance,  that  a  sufficient  distress  might  be  set  out,  or  that 
the  plaintiff  might  hold  and  enjoy  the  land  until  satisfied  the  arrears, 
and  the  growing  payments. 

The  Lord  Keeper  thought  not  fit  to  relieve  the  plaintiff,  declaring  the 
law  never  gives  any  other  remedy,  than  what  the  party  has  provided  for 
himself,  and  the  remedy  here  being  only  by  distress,  and  not  to  enter 
upon  and  hold  the  lands,  declared  he  could  not  relieve  the  plaintiff,  unless 
some  particular  fraud  had  been  proved;  as  letting  the  land  lie  fresh,  or 
depasturing  it  in  the  night  time,  on  purpose  to  prevent  a  distress  and  if 
that  were  the  case,  such  fraud  by  tenant  for  life  ought  to  turn  to  the 
prejudice  of  the  remainder  man,  to  charge  the  land  with  arrears,  which 
incurred  in  the  time  of  the  tenant  for  life,  and  declared  he  must  dis- 
miss the  bill. 

The  defendant  proposing  that  if  the  plaintiff  would  quit  the  arrears, 
he  would  pay  all  the  growing  annuity,  and  be  decreed  to  pay  it;  her 
coiinsel  took  time  to  return  an  answer  to  the  proposition.^ 


LOKER  V.  ROLLE. 

In  Chancery,  before  Lord  Chancellor  Loughborough,  1795. 

[3  Vesey  Junior  4.] 

Lord  Chancellor  [Loughborough].  Upon  the  face  of  the  bill  it  is 
quite  clear,  the  Plaintiff  may  draw  a  declaration  in  ejectment.  The  bill 
states  the  title,  and  that  by  some  means  or  other  the  same  persons  are  in 
possession  of  all  the  lands,  and  have  confounded  the  boundaries:   the 

'  S.  C.  Free,  in  Chancery  126. 

^  See  also  Earle  of  Warrington  v.  Langham.  (1698)  Prec.  in  Ch.  89;  Collins 
v.  Plummer  (1708)  1  Peere  Williams  104;  Bosvil  v.  Brander  (1718)  ib.  458; 
Bayly  v.  Corporation  of  Leominster  (1792)  1  Ves.  476;  Cooke  v.  Wiggins 
(1804)    10  Fes.  191. 

"But,  regularly^  the  law  never  gives  any  other  remedy  than  what  the  party 


260  KEES  V.  CITY  OF  WATERTOWN  [part  i. 

only  consequence  is,  that  the  Plaintiff  may  come  for  a  discovery  to  know, 
what  are  the  farms,  and  who  are  in  possession :  but  that  never  can 
entitle  him  to  come  for  possession  and  an  account.  He  avers,  contrary 
to  the  fact  disclosed  by  his  bill,  that  he  does  not  know  the  lands.  He 
describes  the  two  farms  and  the  tenement.  If  he  had  filed  a  bill  for  dis- 
covery only,  he  must  have  paid  for  the  discovery:  but  it  goes  on  to  pray 
relief,  that  is  merely  an  ejectment.  As  to  the  form  of  the  demurrer,  I 
take  it  to  be  now  a  settled  point,  that  though  he  may  be  entitled  to  a 
discovery,  yet  if  he  goes  on  to  pray  relief,  to  which  he  is  not  entitled,  it 
is  a  good  ground  of  demurrer,  and  the  Defendant  is  not  to  be  put  to 
answer.  He  may  bring  an  ejectment  for  a  farm,  the  name  of  which  he 
knows,  and  a  tenement,  which  he  describes  by  the  name  of  the  last 
occupier.    Allow  the  demurrer. 


.  EEES  V.  CITY  OF  WATERTOWN. 
In  the  Supreme  Court  of  the  United  States,  1873. 
[19  Wallace  107.] 

The  complainant  was  the  holder  of  bonds  issued  by  the  defendant  city 
to  the  Water  town  and  Madison  Railroad  Company.  He  brought  suit 
against  the  city  on  those  in  his  possession  and  obtained  judgments  upon 
which  executions  were  returned  unsatisfied.  He  then  procured  a  manda- 
mus against  the  city  officials  directing  them  to  levy  and  collect  a  tax  upon 
the  taxable  property  of  the  city  in  order  to  pay  the  judgment.  Before  the 
writ  could  be  served,  a  majority  of  the  city  council  resigned  their  ofiices. 
An  alias  mandamus  and  a  pluries  mandamus  were  met  by  the  succeeding 
officials  with  the  same  devices.  The  legislature  of  the  State  of  Wisconsin, 
passed  certain  acts  which  it  was  alleged  were  intended  to  aid  and  did  aid 
the  defendant  in  evading  to  pay  these  debts.  The  bill  alleged  that  the 
corporate  authorities  were  trustees  for  the  benefit  of  the  creditors  of  the 
city;  that  the  property  of  the  citizens  was  a  trust  fund  for  the  payment 
of  its  debts;  and  that  the  court  should  lay  hold  of  such  property  by  its 
own  officers.  The  bill  then  prayed  that  the  marshal  of  the  court  might 
be  directed  to  seize  property  of  the  citizens,  sell  it,  and  apply  proceeds 

has  provided  for  himself,  for  this  would  be  to  alter  the  agreement  of  the 
parties;  though  in  some  cases,  it  is  otherwise.  And  the  diversities  seem  to 
ho  thus  settled:  1st,  where  there  is  no  remedy  at  law,  equity  will  certainly 
grant  one;  as  in  case  of  a  rent-seek,  to  decree  seisin;  or  where  the  deeds, 
by  which  it  is  created,  are  lost,  and  so  uncertain  what  kind  of  rent  it  was; 
for  wherever  there  is  a  right,  there  ought  in  equity  to  be  a  remedy  for  it." — 1 
Fonblanque,  Equity  Bk.  1  ch.  3,  §  3. 


CHAP.  IV.]  REES  V.  CITY  OF  WATERTOWN  261 

on  his  judgments.  The  answer  set  forth  the  impossibility  of  paying  the 
debt  and  an  offer  to  pay  a  compromised  sum.  Among  other  things,  the 
plaintiff  insisted  first,  that  he  having  established  a  clear  legal  right  at 
law,  and  there  being  no  legal  remedy,  it  was  the  duty  of  the  court  to 
devise  and  enforce  by  its  own  officers  an  effectual  remedy.  (The  de- 
fendant contended  the  court  might  only  use  for  enforcing  its  decree  as  to 
state  laws,  the  regular  city  officials.)  Secondly,  that  all  legal  remedies 
having  failed  of  enforcement,  after  repeated  trials,  equity  should  grant 
relief.^ 

Mr.  Justice  Hunt  delivered  the  opinion  of  the  court.' 

We  are  of  the  opinion  that  this  court  has  not  the  power  to  direct  a  tax 
to  be  levied  for  the  payment  of  these  judgments.  This  power  to  impose 
burdens  and  raise  money  is  the  highest  attribute  of  sovereignty,  and  is 
exercised,  first  to  raise  money  for  public  purposes  only;  and,  second,  by 
the  power  of  legislative  authority  only.  It  is  a  power  that  has  not  been 
extended  to  the  judiciary.  Especially  is  it  beyond  the  power  of  the 
Federal  judiciary  to  assume  the  place  of  a  State  in  the  exercise  of  this 
authority  at  once  so  delicate  and  so  important.     *     *     * 

If  the  power  of  taxation  is  conceded  not  to  be  applicable,  and  the 
power  of  the  court  is  invoked  to  collect  the  money  as  upon  an  execution  to 
satisfy  a  contract  or  obligation  of  the  city,  this  section  is  directly  ap- 
plicable and  forbids  the  proceeding.  The  process  or  order  asked  for  is  in 
the  nature  of  an  execution ;  the  property  proposed  to  be  sold  is  that  of 
an  inhabitant  of  the  city;  the  purpose  to  which  it  is  to  be  applied  is  the 
satisfaction  of  a  debt  of  the  city.  The  proposed  remedy  is  in  direct 
violation  of  a  statute  in  existence  when  the  debt  was  incurred,  and 
made  known  to  the  creditor  with  the  same  solemnity  as  the  statute  which 
gave  power  to  contract  the  debt.  All  laws  in  existence  when  the  contract 
is  made  are  necessarily  referred  to  in  it  and  form  a  part  of  the  measure 
of  the  obligation  of  the  one  party,  and  of  the  right  acquired  by  the  other. 

But  independently  of  this  statute,  upon  the  general  principles  of  law 
and  of  equity  jurisprudence,  we  are  of  opinion  that  we  cannot  grant  the 
relief  asked  for.  The  plaintiff  invokes  the  aid  of  the  principle  that  all 
legal  remedies  having  failed,  the  court  of  chancery  must  give  him  a 
remedy;  that  there  is  a  wrong  which  cannot  be  righted  elsewhere,  and 
hence  the  right  must  be  sustained  in  chancery.  The  difficulty  arises 
from  too  broad  an  application  of  a  general  principle.  The  great  ad- 
vantage possessed  by  the  court  of  chancery  is  not  so  much  in  its  enlarged 
jurisdiction  as  in  the  extent  and  adaptability  of  its  remedial  powers. 
Generally  its  jurisdiction  is  as  well  defined  and  limited  as  is  that  of  a 
court  of  law.  It  cannot  exercise  jurisdiction  when  there  is  an  adequate 
and  complete  remedy  at  law.  It  cannot  assume  control  over  that  large 
class  of  obligations  called  imperfect  obligations,  resting  upon  conscience 
and  moral  duty  only,  unconnected  with  legal  obligations.    Judge  Story 

'  The  statement  of  facts  has  been  abridged. 
'  A  part  only  of  the  opinion  has  been  printed. 


262  EEES  V.  CITY  OF  WATERTOWN  [part  i. 

says,  "  There  are  cases  of  fraud,  of  accident,  and  of  trust  which  neither 
courts  of  law  nor  of  equity  presume  to  relieve  or  to  mitigate,"  of  which 
he  cites  many  instances.  Lord  Talbot  says,  "  There  are  cases,  indeed, 
in  which  a  court  of  equity  gives  remedy  where  the  law  gives  none,  but 
where  a  particular  remedy  is  given  by  law,  and  that  remedy  bounded  and 
circumscribed  by  particular  rules,  it  would  be  very  improper  for  this 
court  to  take  it  up  where  the  law  leaves  it,  and  extend  it  further  than  the 
law  allows." 

Generally  its  jurisdiction  depends  upon  legal  obligations,  and  its  de- 
crees can  only  enforce  remedies  to  the  extent  and  in  the  mode  by  law 
established.  With  the  subjects  of  fraud,  trust,  or  accident,  when  prop- 
erly before  it,  it  can  deal  more  completely  than  can  a  court  of  law. 
These  subjects,  however,  may  arise  in  courts  of  law,  and  there  be  well 
disposed  of. 

A  court  of  equity  cannot,  by  avowing  that  there  is  a  right  but  no 
remedy  known  to  the  law,  create  a  remedy  in  violation  of  law,  or  even 
without  the  authority  of  law.  It  acts  upon  established  principles  not  only, 
but  tlarough  established  channels.  Thus,  assume  that  the  plaintiff  is  en- 
titled to  the  payment  of  his  judgment,  and  that  the  defendant  neglects 
its  duty  in  refusing  to  raise  the  amount  by  taxation,  it  does  not  follow 
that  this  court  may  order  the  amount  to  be  made  from  the  private  estate 
of  one  of  its  citizens.  This  summary  proceeding  would  involve  a  viola- 
tion of  the  rights  of  the  latter.  He  has  never  been  heard  in  court.  He 
has  had  no  opportunity  to  establish  a  defence  to  the  debt  itself,  or  if  the 
judgment  is  valid,  to  show  that  his  property  is  not  liable  to  its  payment. 
It  is  well  settled  that  legislative  exemptions  from  taxation  are  valid, 
that  such  exemptions  may  be  perpetual  in  their  duration,  and  that  they 
are  in  some  cases  beyond  legislative  interference.  The  proceeding  sup- 
posed would  violate  that  fundamental  principle  contained  in  chapter 
twenty-ninth  of  Magna  Charta,  and  embodied  in  the  Constitution  of  the 
United  States,  that  no  man  shall  be  deprived  of  his  property  without 
due  process  of  law — that  is,  he  must  be  served  with  notice  of  the 
proceeding,  and  have  a  day  in  court  to  make  his  defence. 

We  apprehend,  also,  that  there  is  some  confusion  in  the  plaintiff's 
proposition,  upon  which  the  present  jurisdiction  is  claimed.  It  is  con- 
ceded, and  the  authorities  are  too  abundant  to  admit  a  question,  that 
there  is  no  chancery  jurisdiction  where  there  is  an  adequate  remedy  at 
law.  The  writ  of  mandamus  is,  no  doubt,  the  regular  remedy  in  a  case 
like  the  present,  and  ordinarily  it  is  adequate  and  its  results  are  satis- 
factory. The  plaintiff  alleges,  however,  in  the  present  case,  that  he  has 
issued  such  a  writ  on  three  different  occasions ;  that,  by  means  of  the  aid 
afforded  by  the  legislature  and  by  the  devices  and  contrivances  set  forth 
in  the  bill,  the  writs  have  been  fruitless;  that,  in  fact,  they  afford  him  no 
rcirifdy.  The  remedy  is  in  law  and  in  theory  adequate  and  perfect.  The 
(lifli'ully  is  ill  its  execution  only.  The  want  of  a  remedy  and  the  in- 
ability to  obtain  the  fruits  of  a  remedy  are  quite  distinct,  and  yet  they 


CHAP.  IV.]  EEES  V.  CITY  OF  WATERTOWN  263 

are  confounded  in  the  present  proceeding.  To  illustrate:  the  writ  of 
habere  facias  possessionem  is  the  established  remedy  to  obtain  the  fruits 
of  a  judgment  for  the  plaintiff  in  ejectment.  It  is  a  full,  adequate,  and 
complete  remedy.  Not  many  years  since  there  existed  in  Central  New 
York  combinations  of  settlers  and  tenants  disguised  as  Indians,  and 
calling  themselves  such,  who  resisted  the  execution  of  this  process  in 
their  counties,  and  so  effectually  that  for  some  years  no  landlord  could 
gain  possession  of  his  land.  There  was  a  perfect  remedy  at  law,  but 
through  fraud,  violence,  or  crime  its  execution  was  prevented.  It  will 
hardly  be  argued  that  this  state  of  things  gave  authority  to  invoke  the 
extraordinary  aid  of  a  court  of  chancery.  The  enforcement  of  the  legal 
remedies  was  temporarily  suspended  by  means  of  illegal  violence,  but  the 
remedies  remained  as  before.  It  was  the  case  of  a  miniature  revolution. 
The  courts  of  law  lost  no  power,  the  court  of  chancery  gained  none.  The 
present  case  stands  upon  the  same  principle.  The  legal  remedy  is  ade- 
quate and  complete,  and  time  and  the  law  must  perfect  its  execution. 

Entertaining  the  opinion  that  the  plaintiff  has  been  unreasonably 
obstructed  in  the  pursuit  of  his  legal  remedies,  we  should  be  quite  willing 
to  give  him  the  aid  requested  if  the  law  permitted  it.  We  cannot,  how- 
ever, find  authority  for  so  doing,  and  we  acquiesce  in  the  conclusion 
of  the  court  below  that  the  bill  must  be  dismissed.' 

Judgment  Affirmed. 

Mr.  Justice  Clifford,  with  whom  concurred  Mr.  Justice  Swayne,  dis- 
senting : 

I  dissent  from  the  opinion  of  the  court  in  this  case  upon  the  ground 
that  equity  will  never  suffer  a  trust  to  be  defeated  by  the  refusal  of  the 
trustee  to  administer  the  fund,  or  on  account  of  the  misconduct  of  the 
trustee,  and  also  because  the  effect  of  the  decree  in  the  court  below,  if 
affirmed  by  this  court,  will  be  to  give  judicial  sanction  to  a  fraudulent 
repudiation  of  an  honest  debt.  For  which  reasons,  as  it  seems  to  me, 
the  decree  of  the  subordinate  court  should  be  reversed. 

'  "It  is  true  that  whei-e  the  law  gives  neither  right  nor  remedy,  how- 
ever hard  it  may  be,  equity  cannot  assist.  So  in  the  case  of  damages  for 
a  personal  injury,  which  arises  ex  delicto  and  not  ex  contractu,  they  are  gone 
with  the  person,  but  it  is  not  so  clear  in  the  case  of  a  demand  tlie  recovery 
of  Avhich  has  been  prevented  by  a  difficulty  unconscientiously  thrown  in  the 
way  by  another  person.  There  equity  will  give  relief,  and  the  relief  it  gives  is 
beyond  that  which  the  party  could  obtain  at  law."  Per  8ir  Richard  Pepper 
Arden,  M.  R.,  in  Curtis  v.  Curtis  (1789)  2  Bro.  Rep.  620,  633.  And  see 
Dormer  v.  Fortcscue   (1744)    3  Atkyns  124. 

"Where  there  is  a  remedy  at  law,  equity  will  not  grant  a  further  one,  al- 
though the  remedy  at  law  is  not  sufficient ;  unless  there  be  some  fraud,  or  the 
like." — Fonblanque,   Equity  Bk.    1,  ch.   3,   §    3. 


264  SHUTTLEWORTH  v.  LAYCOCK  [part  i. 

PowERs's  Appeal  (1889)  125  Pa.  St.  175,  186.— Mr.  Justice  Williams: 
— The  maxim  of  the  common  law  that  wherever  there  is  a  right  there  is 
a  remedy  for  its  infraction,  has  never  been  adopted  by  courts  of  equity. 
A  party  whose  right  is  clear  may  sleep  upon  it  until  his  demand  be- 
becomes  stale.  He  may  look  on  while  valuable  structures  are  erected, 
when  he  might  successfully  object,  and  remain  silent  until  large  sums 
have  been  expended  or  important  intervening  interests  have  grown  up. 
In  such  cases  the  fact  that  he  might  have  objected  at  the  outset  will  not 
avail  him.  A  suitor  must  not  only  appear  in  a  court  of  equity  with  clean 
hands,  but  he  must  come  with  reasonable  promptness,  in  good  faith,  and 
with  a  just  and  equitable  demand;  otherwise  the  conscience  of  the 
chancellor  will  not  be  moved.  If  an  injunction  is  prayed  for  where, 
upon  a  consideration  of  the  whole  case,  it  ought  not  in  good  con- 
science to  issue,  a  mere  legal  right  in  the  plaintiff  will  not  move  the 
chancellor.^ 


C. — He  Who  Seeks  Equity  Must  do  Equity.' 


SHUTTLEWORTH  v.  LAYCOCK. 

In  Chancery,  before  Lord  Keeper  North^  1684. 

[1  Vernon  244.]  ' 

Where  there  is  a  debt  secured  by  a  mortgage,  and  also  a  bond  debt: 
when  the  heir  of  a  mortgagor  comes  to  redeem,  he  shall  not  redeem 
without  paying  the  bond  debt  too,  in  case  the  heir  be  bound;  so  if  there 
are  two  mortgages  and  one  is  defective,  if  he  will  redeem  he  must  take 
both. 

'  "Where  a  contract  is  void  at  law  for  want  of  power  to  make  it,  a  court 
of  equity  has  no  jurisdiction  to  enforce  such  contract,  or,  in  the  absence  of 
fraud,  accident  or  mistake,  to  so  modify  it  as  to  make  it  legal  and  then  en- 
force it.  Courts  of  equity  can  no  more  disregard  statutory  a.id  constitutional 
requirements  and  provisions  than  can  courts  of  law.  They  are  bound  by  pos- 
itive provisions  of  a  statute  equally  with  courts  of  law,  and  where  the  trans- 
action, or  the  contract  is  declared  void  because  not  in  compliance  with  ex- 
press statutory  or  constitutional  provision,  a  court  of  equity  cannot  inter- 
pose to  give  validity  to  such  transaction  or  contract,  or  any  part  thereof." 
Per  Mr.  Justice  Jackson  in  Hedges  v.  Dixon  County  (1893)   150  U.  8.  182,  102. 

"I  do  not  understand  that  equity,  even  under  the  benign  administration  of 
the  longest  footed  chancellor,  undertakes  to  enforce  moral  obligations  in  the 
length  and  breadth  of  the  Golden  Rule,  and  it  is  important  tliat  we  should 
keep  its  boundaries  carefully  marked." — Per  Mr.  Justice  Mitchell  (dissenting) 
in  Iloffmr's  Estate   (1804)    101  Pa.  8t.  331,  344. 

Tor  a  collection  of  the  early  cases,  see  Francis,  Maxims  of  Equity  2. 


CHAP,  v.]  EX  PARTE  KING  2G5 

MARGRAVE  v.  LE  HOOKE. 

In  Chancery,  before  the  Lord  Commissioners,  1G90. 

[2  Vernon  207.] 

The  plaintiff's  bill  was  to  redeem  a  mortgaf^e  made  by  his  father  to 
the  defendant,  who  by  answer  insisted,  that  the  plaintiff's  father  had 
made  him  two  several  mortgages  of  several  lands,  that  the  plaintiff  en- 
deavoured to  defeat  him  of  one  of  those  mortgages,  by  reason  of  an 
entail,  and  hoped  that  in  equity  he  should  redeem  both  or  neither. 

Per  Cur.  lie  shall  redeem  both  or  neither;  and  so  if  one  mortgage 
had  been  deficient  in  value,  and  the  other  mortgage  had  been  more  worth 
than  the  money  lent  upon  it,  the  heir  should  not  have  been  admitted  to 
redeem  the  one  without  the  other. 


POPE  V.  ONSLOW. 
In  Chancery,  before  Sir  John  Trevor,  M.  R.,  1692.' 

[2   Vernon  285.] 

The  plaintiff  as  assignee  of  a  statute  of  banlvrupt,  brought  his  bill  to 
redeem  a  mortgage  of  the  manor  of  Newington  in  Kent,  made  by  the 
bankrupt  to  the  defendant. 

The  defendant  by  answer  insisted,  that  he  first  lent  the  bankrupt 
2001.  on  a  mortgage  of  a  particular  tenement,  and  afterwards  lent  him 
3001.  on  a  mortgage  of  the  manor  of  Newington,  which  was  of  better 
value  than  the  money  due,  but  the  first  mortgage  was  deficient  in  value. 
Per  Cur.    If  the  plaintiff  will  redeem  one,  he  shall  redeem  both. 


EX  PARTE  KING. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1753. 

[1  Atlcyns  300.] 

It  was  said  by  Mr.  Ord  it  was  determined  in  the  case  of  Pope  v. 
Onslow,  2  Vern.  28G,  where  A.  had  two  mortgages  upon  different  inde- 
pendent estates  of  the  mortgagor,  one  a  deficient  security,  and  the  other 

^  "Trevor  was  a  lawyer  of  no  small  learning  and  ability,  and  apparently 
as  upright  on  the  bench  as  he  was  unscrupulous  in  the  House  of  Commons. 
(Burnet  Own  Time,  fol.  edit.  II.  42)."     Dictionary  Biography,  Article  Trevor. 


266  WILLIE  V.  LUGG  [part  i. 

more  than  sufficient;   that  the  mortgagor  should  not  redeem  the  last, 
without  making  good  the  deficiency  of  the  other  security. 

Lord  Chancellor  said  he  was  not  satisfied  that  this  was  the  established 
rule  of  the  Court,  and  upon  looking  into  the  case  above,  found  it  very 
imperfect,  and  therefore  declared  he  would  not  have  it  cited  for  the 
future,  till  it  had  been  compared  with  the  entry  in  the  Register's  office, 
and  said  farther  he  was  very  apt  to  believe  that  the  tenements  were 
parcel  of  and  held  of  the  manor  of  Sale,  and  that  was  the  reason  Lord 
Cowper  so  determined. 


WILLIE  V.  LLTGG. 

In  Chancery^  before  Lord  Northington  1761.* 

[2   Eden   78.] 

One  Samuel  Willie  created  by  indenture  to  Robert  Dixon,  a  term  for 
500  years  on  an  estate  known  as  Dixon's  Farm,  as  security  for  a  loan  of 
£350.  Later  he  settled  this  same  estate  upon  trustees  to  the  use  of  his 
wife  for  life,  remainder  according  to  her  appointment.  Willie  owned 
two  adjoining  estates.  East  Dales,  also  covered  by  the  mortgage  to  Dixon, 
and  West  Dales.  Later  Willie  sold  part  of  the  Dixon  Farm.  He  then 
settled  upon  himself  and  wife,  with  remainders.  East  Dales.  Dixon 
assigned  his  rights  in  Dixon  Farm  to  the  defendant  Lugg.^ 

The  bill  was  brought  by  Mrs.  Willie  against  Lugg,  and  the  executors  of 
Dixon,  who  was  dead,  to  redeem  the  East  Dales. 

The  Lord  Chancellor. 

This  bill  was  brought  to  redeem  the  East  Dales,  and  to  leave  Dixon's 
Farm,  now  reduced  in  point  of  value  by  the  mortgagees  selling  a  part 

'  "In  Lord  Eldon's  judgment,  Northington  was  'a  great  lawyer  and  very  firm 
in  delivering  his  opinion'  [Wutlcins  v.  Lea  (1802)  6  Yes.  G33,  640].  It  has,  how- 
ever, been  truly  remarked  that  his  boldness  in  delivering  his  opinions  was  not 
quite  equalled  by  his  care  and  caution  in  forming  them.  When  Fox  (the 
father  of  Charles  James)  consulted  him  whether  the  King  could  not  revoke 
the  patents  granted  in  former  reigns,  and  whether  the  case  might  not  be  laid 
before  the  twelve  judges  for  their  opinion,  Northington  is  said  to  have  replied, 
*Yes,  they  might  lay  the  idea  before  the  judges  and  then  refer  Magna  Charta 
to  them  afterwards  to  docido  on  that,  too.'  Walpole  Memoirs  of  the  Reign  of 
Oeorge    III.,   i,   240."      (Dictionary  r>iography,   Article,   Henley.) 

A  further  (luolnt  imi  finm  (he  same  source  will  scarcely  be  out  of  place: 

"In  his  youth  lie  was  a  luud  drinker,  and  when  suffering  in  later  life  from 
a  .severe  fit  of  gout  was  overheard  in  the  House  of  Lords  muttering  to  himself, 
Mf  I  had  known  that  these  legs  were  one  day  to  carry  a  chancellor  I'd  have 
taken  better  care  of  them  when  I  was  a  lad.'"      (Memoirs,  p.  1.3.) 

°The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  omitted. 


CHAP.  IV.]  WILLIE  V.  LUGG  2G7 

for  the  benefit  of  the  plaintiff,  who  had  the  inheritance.     The  question 
is,  whether  she  can  come  into  this  court  for  such  an  equity. 

Every  mortgagee,  when  the  mortgage  is  forfeited,  has  acquired  an 
absolute  legal  estate.  Upon  what  terms  can  this  court  proceed  to  a  re- 
demption? By  giving  the  mortgagee  the  value  of  his  money,  its  fruit, 
and  his  costs,  and  upon  those  terms  only:  for  it  is  obvious  injustice  to 
help  to  the  restitution  of  the  pledge,  without  a  full  restitution  of  what 
it  is  first  pledged  for.  If  a  person  makes  two  different  mortgages  of  two 
different  estates,  the  equity  reserved  is  distinct  in  each,  and  the  con- 
tracts are  separate:  yet  if  the  mortgagor  would  redeem  one,  he  cannot; 
because  if  you  come  for  equity  you  must  do  equity;'  and  the  general 

'  "It  will  be  remembered  that  there  were  numberless  cases  which  were  al- 
lowed by  the  Praetors  as  sufficient,  by  way  of  exception  or  plea,  to  avoid 
a  demand  which  would  not  have  availed  to  give  to  a  man  an  action,  legal  or 
«quitable,  civilis  vel  utilis,  as  plaintifi'.  An  illustration  taken  from  the  rule 
as  adopted  by  our  ecclesiastical  Courts^  may  be  referred  to.  In  suits  for 
divorce,  recrimination  is  allowed  in  many  cases  where  the  circumstances 
would  not  of  themselves  afford  grounds  for  an  application  to  the  court  for  a 
divorce,  at  the  instance  of  the  party  who  urges  them.  This  principle,  trans- 
mitted from  the  earliest  times,  is  acted  upon  in  the  Court  of  Chancery  at 
the  present  day.  But  the  early  Chancellors  carried  the  principle  farther, 
and  held,  that  he'  who  applied  to  the  court  of  equity,  should  himself  do  equity; 
and  this  is  still  a  governing  principle.  Here  one  of  the  distinctive  features 
of  the  proceedings  in  the  Court  of  Chancery  may  be  discerned.  The  nature 
of  the  pleadings  and  of  the  judgment  at  law,  precluded  the  possibility  of  in- 
troducing cross  demands  in  one  action. 

"However,  in  the  reign  of  Elizabeth  and  her  immediate  successors,  the  prin- 
ciple last  alluded  to,  was  carried  to  an  extent  far  beyond  its  present  limits. 
Even  moral  duties  were  enforced  on  the  part  of  the  plaintiff  as  a  condition 
precedent  to  his  obtaining  relief. 

"  [Mr.  Phillips,  as  counsel  for  the  plaintiflf,  having  moved  before  Sir  C. 
Hatton,  L.  C,  to  set  aside  a  decree  of  the  late  Lord  Keeper  Bromley,  asserting, 
as  one  of  his  grounds,  that  it  was  without  precedent  to  make  an  order 
against  the  plaintiflf;  many  precedents  of  such  decrees  in  the  reigns  of  Hen. 
VIII.  and  Edw.  VI.  having  been  produced,  Mr.  Phillips  was  for  such  his 
assertion  committed  to  the  Fleet.  The  following  is  an  abstract  of  the  order, 
which  is  curious  in  many  respects:  "And  because  the  said  Mr.  Phillips  could 
not  excuse  himself  of  rashness  and  oversight  in  making  the  aforesaid  in- 
formation (though  he  protested  he  never  meant  by  the  same  to  impeach  the 
honorable  proceedings  of  this  court,  but  was  deceived  therein  by  the  untrue 
information  of  the  plaintiff,  and  craved  pardon).  Therefore,  and  because  the 
motion  tended  to  the  open  accusation  of  the  late  Lord  Chancellor  and  this 
honorable  court,  that  they  had  not  proceeded  seriously,  and  according  to 
right  and  equity  in  this  cause,  which  might  not  for  the  honor  of  this  court 
escape  altogether  unpunished:  Ft  is  ordered,  that  ]\Ir.  Phillips  be  committed 
to  the  prison  of  the  Fleet  for  his  rash  motion  only,  and  not  for  any  other 
fault  or  respect."  Reg.  Lib.  1587,  fol.  626,  Brocas  v.  Savage  Knight,  and  the 
Lady  Eleanor  his  Wife.  Mr.  Phillips,  as  the  subsequent  books  show,  did 
not  suffer  in  his  business  from  this  act  of  oppression. — n.    (b)]. 


268  WILLIE  V.  LUGG  [part  i. 

estate  being  liable  to  both  mortgages,  this  court  will  not  be  an  instru- 
ment to  take  illegally  from  a  mortgagee  that  by  which  he  will  be  de- 
frauded of  a  part  of  his  debt. 

I  cannot  see  any  difference  between  that  case  and  the  case  at  present 
under  consideration ;  for  the  principle  upon  which  the  court  proceeds 
subsists  as  long  as  the  equity  of  redemption  remains  united.  If  you 
come  to  redeem  separately,  you  come  for  equity  without  doing  equity; 
paying  a  debt,  in  lieu  of  which  the  mortgagee  can  hold  both  your  estates 
until   this   court  interposes. 

There  seems  also  a  manifest  distinction  between  this  case  and  the  case 
of  a  purchase  subject  to  a  mortgage;  for  there  the  purchaser  acquires 
a  right  to  redeem  that  particular  mortgagee,  and  when  he  comes  to  re- 
deem, he  offers  to  equity  to  pay  all  that  his  estate  is  a  debtor  for.* 

Bill  dismissed  without  costs. 

"On  this  principle  also  decrees  in  favor  of  the  defendant  in  the  plaintiff's 
own  suit,  were  frequently  made,  at  least  from  the  time  of  Henry  VIII.,  where 
the  defendant  established  a  case  against  the  plaintiff,  in  relation  to  the 
subject-matter  of  the  suit.  Thus  the  lands  in  dispute  were  sometimes  decreed 
to  the  defendant,  or  it  was  decreed  that  the  defendant  should  hold  and  en- 
joy, and  that  the  plaintiff  should  deliver  to  him  the  deeds;  and  sometimes 
the  plaintiff  was  enjoined  by  the  decree  from  further  troubling  the  defen- 
dant as  to  the  subject  of  the  suit:  and  even  when  the  plaintiff  had  made  out 
a  clear  case  for  relief,  and  obtained  a  decree,  it  was  sometimes  suspended  in 
order  to  force  him  to  do  moral  equity  by  complying  with  an  offer  of  the 
defendant,  which  the  Lord  Keeper  considered  reasonable." — 1  Spence  Jurisdic- 
tion of  the  Court  of  Chancery  422. 

^  The    rule,    however,    laid    down    in    the    old    cases,    Purefoy    v.    Purcfoy, 

1  Yern.  26.  Shuttleworth  v.  Laywick,  ib.  245.  Margrave  v.  Le  Hooke,  2  Vern. 
207.  Pope  v.  Onslow,  ib.  286.  (the  authority  of  which,  however,  was  doubted 
by  Lord  Hardivicke  in  ex  parte  King,  1  Atk.  300.)  Ex  parte  Carter,  Amb. 
733.  Roe  v.  Soley,  Bl.  Rep.  726.  that  a  mortgagor  of  two  distinct  estates, 
upon  distinct  transactions,  to  the  same  mortgagee,  cannot  redeem  one  with- 
out ix'deeming  the  other,  seems,  by  modern  decisions,  to  have  been  extended 
to  a  purchaser  of  the  equity  of  redemption  of  one  of  the  mortgaged  estates, 
without  notice  of  the  other  mortgage.  Cator  v.  Charlton,  cit.  2  Yes.  jun.  377. 
Collet  V.  Munden  cit.  ib.  Ireson  v.  Denn,  2  Cox,  425,  Et  vide  Jones  v.  Smith, 

2  Yea.  jun.  372. — Keporter's  note. 


CHAP.  IV.]  HOWARD  V.  MOFFATT  269 

IRESON  V.  DENN. 
In  Chancery,  before  Sir  Richard  Pepper  Arden,  M.  R.,  1796.* 

[2  Cox,  Chancery  425.] 

Bill  by  the  purchaser  of  the  equity  of  redemption  against  the  mort- 
gajree  to  redeem. 

Defendant,  by  his  answer,  stated  a  subsequent  mortgage  made  to  him 
by  the  same  mortgagor  of  distinct  premises,  and  for  a  distinct  debt;  and 
insisted  that  the  plaintiff  had  no  right  to  redeem  the  first  mortgage  with- 
out redeeming  the  second. 

And  his  Honour  said  he  did  not  know  why  such  a  rule  was  ever  laid 
down,  but  that  it  had  been  decided  by  many  cases,  that  a  mortgagee  of 
two  distinct  estates  upon  distinct  transactions  from  the  same  mortgagor 
was  entitled  to  hold  both,  even  against  the  purchaser  of  the  equity  of 
redemption  of  one  of  the  mortgaged  estates,  without  notice  of  the  other 
mortgage,  until  payment  of  the  whole  money  due  on  both  mortgages. 
And  his  Honour  thought  the  persons  interested  in  the  equity  of  re- 
demption of  the  second  mortgage  were  necessary  parties  to  this  suit ;  and 
directed  the  cause  to  stand  over  to  make  these  parties  accordingly. — Reg. 
Lib.  A.  1796,  fol.  399. 


HOWARD  V.  MOFFATT. 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1816. 

[2  Johnson's  Chancery  206.] 

The  bill  stated  that  the  father  of  the  plaintiff's  wife  died  intestate, 
leaving  five  children,  and  a  large  real  and  personal  estate;  that  part  of 
the  real  estate,  by  the  consent  of  the  plaintiff,  and  the  proceeds  of  what 

^  While  the  friendship  of  the  younger  Pitt  accounted  for  Arden's  various  pro- 
motions, he  was  a  sound  lawyer  and  judge  as  well  as  ^^it  and  man  of  the  world. 
Indeed,  it  is  said  that  Arden's  "decisions  show  him  to  have  been  a  better  equity 
judge  than  Thurlow,  much  as  Thurlow  would  have  been  surprised  at  being 
considered  inferior  to  'little  Peppy,'  the  man  he  most  contemned."  (Dictionary 
Biography,  Article,  Arden.) 

There  is,  however,  ample  justification  for  Arden's  reputation:  Chief  Justice 
Best  pronounced  him  "one  of  the  safest  guides  in  Westminster  Hall."  Newton 
V.  Cowie  (1827)  4  Bing.  234,  242;  and  Lord  Ellenborough  spoke  of  him  as 
one  "who,  to  a  very  sound  judgment,  joined  a  very  accurate  knowledge  of  the 
law  ot  real  property."    Goodtille  v.  White  (1812)  15  East  174,  198. 


270  HOWARD  v.  MOFFATT  [part  i. 

had  been  sold,  are  in  the  hands  of  the  defendant,  who  refused  to  account, 
&c.  The  bill  prayed  that  the  defendant  might  account,  and  pay  over 
the  money  to  the  plaintiff. 

The  defendant,  (who  is  the  brother  of  the  plaintiff's  wife,)  in  his 
answer,  admitted  the  death  of  the  ancestor,  and  the  estate,  &c.,  and 
stated  the  personal  estate  had  been  duly  distributed;  that  most  of  the 
real  estate  had  been  sold ;  that  he  had  in  his  hands  moneys  belonging  to 
the  wife  of  the  plaintiff,  amounting  to  1,290  dollars  and  90  cents;  and 
that  she  had  frequently  requested  him  not  to  pay  it  over  to  her  husband. 

The  master's  report  stated,  that  there  were  1,923  dollars  and  77  cents 
due  from  the  defendant;  that  it  was  proved  before  him,  that  the  plaintiff 
was,  by  profession,  a  mariner,  and  poor;  and  that  the  defendant  was  a 
person  of  property,  and  a  prudent  man ;  that  the  wife  of  the  plaintiff  was 
examined,  by  consent,  and  stated,  that  she  had  always  lived  har- 
moniously with  her  husband,  who  was  captured,  some  years  ago,  by  a 
French  privateer,  and  remained  in  Europe  for  five  years,  and  was  absent 
from  New-Yorh  seven  years:  that  when  he  went  abroad  he  left  money 
sufficient  to  maintain  her  during  the  time  he  expected  to  be  absent;  but 
the  sum,  and  the  credit  he  had  given  her,  were  soon  exhausted,  and  she 
was  obliged  to  sell  the  plaintiff's  furniture  for  her  maintenance;  that 
before,  and  since  the  period  of  his  absence,  she  had  been  exclusively 
maintained  by  him;  and  during  his  absence  he  had  corresponded  with 
her  by  every  opportunity.  That,  as  the  plaintiff  was  now  out  of  business, 
and  might  prove  unfortunate,  she  wished  the  defendant  to  keep  her 
money,  as  it  would  be  safer  with  him ;  and  that  she  was,  at  present,  main- 
tained by  the  plaintiff. 

The  cause  was  now  brought  on  for  a  final  hearing. 

The  Chancellor  [Kent].  The  general  rule  is,  that  where  the  aid 
of  the  Court  is  requisite  to  enable  the  husband  to  take  possession  of  the 
wife's  property,  he  must  do  what  is  equitable,  by  making  a  reasonable 
provision  out  of  it  for  her  maintenance  and  that  of  her  children,  and 
without  that,  the  aid  of  the  Court  will  not  be  afforded  him.  The  prac- 
tice is,  for  the  husband,  on  a  reference,  to  make  proposals  of  a  settlement 
before  a  master,  and,  on  the  coming  in  of  his  report,  the  Court  judges 
of  its  sufficiency.  Whether  the  husband  applies  by  himself,  or  a  suit  for 
the  wife's  debt,  legacy,  portion,  &c.,  be  brought  by  the  legal  representa- 
tives of  the  husband,  as  his  executors,  or  assignees,  the  result  is  the  same, 
and  the  aid  of  the  Court  will  not  be  afforded  without  a  suitable  settle- 
ment, unless,  perhaps,  the  wife  comes  into  Court,  and  on  examination 
voluntarily  waives  any  provision.  It  seems  now  to  be  understood,  (Sir 
Wm.  Grant,  in  Murray  v.  Elihanh,  13  Yesey,  1.)  that  the  wife  may, 
at  her  option,  waive  any  settlement,  though  in  one  case,  Lord  HardwicTce 
still  sternly  insisted  on  a  provision  for  her,  {ex  parte  Highham,  2  Ves. 
579.)  if  indeed  we  may  rely  on  a  loose  authority,  and  which  was  directly 
contrary  to  a  prior  and  strong  case  in  his  time  on  that  point.  {Willais 
V.  Cay,  2  A  tic.  07.)    The  extent  of  the  provision  will  depend  upon  the  cir- 


CHAP.  IV.]  FANNING  v.  DUNHAM  271 

cumstances  of  each  case.  If  the  husband  can  lay  hold  of  the  property 
without  the  aid  of  a  Court  of  equity,  it  is  understood  that  he  may  do 
it;  the  Court  has  not  the  means  of  enforcinj?  a  settlement  by  interfering 
with  his  remedies  at  law.  These  are  the  general  rules  which  have  been 
established'  by  a  course  of  practice  under  this  peculiar  doctrine  of  the 
Court,  and  which  has  been  steadily  and  uniformly  observed,  for  above 
a  century  past.  Lord  Keeper  Wright,  in  Oxenden  v.  Oxenden,  2  Vern. 
494.  Bosvil  V.  Brander,  1  P.  W7ns.  459.  Jacobson  v.  Williams,  2  P. 
Wms.  382.  Broum  v.  Elton,  3  P.  Wms.  202.  Jewson  v.  Moulson,  2  Atk. 
417.  Grey  v.  Kentish,  1  Atk.  280.  Burden  v.  Dean,  and  Oswell  v.  Robert, 
2  Ves.  jun.  607,  680.  Brown  v.  Clarke,  3  Vesey,  166.  Lump  v.  Milnes,  5 
Vesey,  517.  Vide  also  1  Vesey,  539.  1  Ves.  &  Beame,  300,  and  Murray 
v.  Elibank,  13  Ves.  1.) 

In  the  case  before  me  there  are  sufficient  reasons  for  requiring  some 
provision  for  the  wife  out  of  the  fund  in  question.  Though  there  be 
real  property  of  the  wife  still  undisposed  of,  yet  the  husband  has  a  life 
estate  in  it,  and  her  residuary  interest  would  not  be  very  productive. 
The  fact  has  also  occurred,  that  she  has  been  left  for  years  unsupported 
by  her  husband,  in  consequence  of  his  unavoidable  absence;  and  it 
appears  from  the  master's  report,  that  his  means  of  living  are  small,  and 
the  exercise  of  his  maritime  profession  unusually  hazardous.  Under 
these  circumstances,  provision  ought  to  be  made  for  the  wife  out  of  the 
moneys  now  due  to  her  from  her  father's  estate,  before  the  husband  can 
receive  the  aid  of  the  Court. 

I  shall,  therefore,  suspend  the  decree,  and  recommend,  in  the  mean 
time,  that  the  amount  of  1,000  dollars  be  secured  for  the  wife  and  child, 
by  an  amicable  arrangement  between  the  parties,  and  that  the  residue 
be  paid  over  to  the  husband.  If  this  recommendation  be  not  effective, 
I  will  then  make  some  direction  in  the  case. 

N.  B.  The  arrangement  recommended  took  place,  and  the  cause  was 
not  brought  again  before  the  Court. 


In  Fanning  v.  Dunham  (1821)  5  Johns.  Ch.  122,  142,  Chancellor 
Kent  said:  With  respect  to  the  relief  that  can  be  afforded  here 
I  take  the  rule  to  be,  that  a  plaintiff  who  comes  to  a  Court  of  Equity  for 
relief  against  a  judgment  at  law,  or  other  legal  security,  on  the  ground 
of  usury,  cannot  be  relieved,  except  upon  the  reasonable  terms  of  paying 
to  the  defendant  what  is  really  and  bona  fide  due  to  him.  On  the  other 
hand,  if  the  party  claiming  under  such  usurious  judgment,  or  other 
security,  resorts  to  this  Court  to  render  his  claim  available,  and  the  de- 
fendant sets  up  and  establishes  the  charge  of  usury,  the  Court  will  decide 
according  to  the  letter  of  the  statute,  and  deny  all  assistance,  and  set 
aside  every  security  and  instrument  whatsoever,  infected  with  usury. 
It  is  perfectly  immaterial,  in  respect  to  the  application  of  the  principle 


272  FANNING  v.  DUNHAM  [part  i. 

to  the  case  of  the  debtor  who  sues  here,  whether  the  usury  be  confessed 
by  the  defendant  in  his  answer,  or  be  made  out  by  proof.  The  plaintiff 
must  still  consent  to  do  what  is  just  and  equitable  on  his  part,  or  the 
Court  will  not  assist  him,  but  leave  him  to  make  his  defence  at  law,  as 
well  as  he  can.  The  case  of  Taylor  v.  Bell,  (2  Vern.  171.)  is  a  striking, 
but  very  harsh  illustration  of  the  rule.  The  plaintiff  had  given  bonds 
with  sureties,  for  moneys  borrowed  at  usury,  and  a  warrant  to  confess 
judgment,  and  judgment  was  entered  thereon.  He  then  brought  his 
bill  to  be  relieved,  and  for  an  account,  and  though  the  answer  confessed 
the  facts  from  which  the  usury  was  deduced,  relief  was  denied,  and  he 
was  ordered  to  pay  principal,  interest,  and  costs.  So,  in  a  late  case  in 
the  Exchequer,  (Skyrne  v.  Byhot,  cited  in  Orde  on  Usury,  113.)  where  a 
bond  and  warrant  of  attorney  was  taken  in  an  usurious  transaction,  the 
decree  was,  to  take  an  account  of  the  money  really  paid,  and  that  on  pay- 
ment thereof,  the  bond  and  warrant  of  attorney  were  to  be  delivered  up. 
In  8cott  v.  Neshit,  (2  Bra.  641.  2  Cox,  183.)  we  have  this  strong  observa- 
tion of  Lord  Thurlow :  "  I  take  it  to  be  an  universal  rule,"  he  observes, 
"  that  if  it  be  necessary  for  you  to  come  into  this  Court  to  displace  a 
judgment  at  law,  you  must  do  it  upon  the  equitable  terms  of  paying  the 
principal  money  really  due,  with  lawful  interest.  I  have  no  idea  of 
displacing  a  judgment  upon  any  other  terms."  He  directed,  in  that  case, 
that  the  judgment  should  stand  as  a  security  for  the  money  actually 
paid,  with  legal  interest. 

The  equity  cases  speak  one  uniform  language;  and  I  do  not  know  of 
a  case  in  which  relief  has  ever  been  afforded  to  a  plaintiff,  seeking  relief 
against  usury,  by  bill,  upon  any  other  terms.  It  is  the  fundamental  doc- 
trine of  the  Court.  Lord  Hardiuicke  (1  Vesey,  320.)  said,  that  in  case  of 
usury,  equity  suffers  the  party  to  the  illicit  contract  to  have  relief,  but 
whoever  brings  a  bill,  in  case  of  usury,  must  submit  to  pay  principal  and 
interest  due.  Lord  Eldon,  (3  Fes.  &  Bea.  14.)  after  an  interval  of  more 
than  sixty  years,  declared  precisely  the  same  rule.  At  law,  says  he,  you 
must  make  out  the  charge  of  usury,  and  at  equity,  you  cannot  come  for 
relief,  without  offering  to  pay  what  is  really  due;  and  you  must  either 
prove  the  usury  by  legal  evidence,  or  have  the  confession  of  the  party. 
In  Earjlcfion  v.  Shotwell,  (1  Johns.  Ch.  Rep.  536.)  the  same  rule  fol- 
lowed in  this  Court,  where  a  party  came  to  be  relieved  against  usury  in  a 
mortgage. 

I  have  been  thus  particular  in  showing  the  rule  of  equity  on  this  sub- 
ject, because  the  plaintiff'  has  sought  by  his  bill  to  have  all  the  securities 
taken  by  the  defendant,  and  infected  with  usury,  declared  void,  and  or- 
dered to  be  cancelled,  without  offering  to  pay  any  thing.  His  counsel 
have  also  contended,  at  the  hearing,  that  the  rule  in  equity,  where  the 
defendant  either  confesses  the  usury,  or  it  is  established  by  testimony, 
is  the  same  as  it  is  when  usury  is  set  up  as  a  defence  to  a  demand  in  law 
or  equity.  All  that  I  can  do  in  this  case,  consistently  with  my  view  of 
the  established  doctrine  of  the  Court  is,  to  direct  an  account  to  be  taken 


CHAP.  IV.]  FANNING  v.  DUNHAM  273 

of  the  dealings  between  the  parties,  and  to  hold  the  securities  which  the 
defendant  has  taken,  to  be  good  only  for  the  balance  which  may  appear 
to  be  due  to  the  defendant,  after  deducting  all  usurious  excess  in  any  of 
his  commissions  and  charges. 

The  objection  that  presses  upon  the  subject  is,  that  the  statute  of  usury 
may  be,  in  a  great  degree,  eluded,  by  taking  a  judgment  bond,  which  pre- 
cludes the  debtor  from  an  opportunity  of  pleading  the  usury  in  a  Court 
of  law ;  and  if  he  can  only  be  relieved  upon  the  principles  of  a  Court  of 
Equity,  or  by  the  summary  powers  of  a  Court  of  law,  acting  upon 
equitable  principles,  the  usurious  creditor  is  sure  to  preserve  his  principal 
sum,  and  the  lawful  interest.  But  this  objection  was  for  a  long  time 
perceived,  and  felt,  and  endured  in  the  Courts  of  law,  before  any  remedy 
could  be  applied ;  and  though  they  interfered,  at  first,  most  effectually,  by 
vacating  the  warrant  of  attorney,  and  allowing  the  party  to  come  in  and 
plead,  they  seem  now  to  have  abandoned  the  case  to  equitable  relief,  and 
to  choose  to  administer  no  other.  It  is  the  folly  of  the  party  to  have  pre- 
cluded himself  from  pleading,  by  confessing  judgment.  Leges  vigilan- 
tihus  non  dormientihus  suhveniunt.  At  any  rate,  though  it  were  even 
to  be  regretted,  that  Courts  of  law  cannot  place  the  debtor  in  a  condition 
to  be  enabled  to  annul  the  contract  altogether,  vuider  the  sanction  of  the 
statute;  yet  certainly  I  should  introduce  a  new  principle  into  this  Court, 
if  I  was  now  to  undertake  to  displace  a  judgment  at  law,  upon  any  other 
terms  than  those  I  have  mentioned. 

The  same  objection  and  difficulty  occur  in  the  case  of  a  mortgage  taken 
to  secure  an  usurious  loan,  with  a  power  to  sell,  annexed  to  it,  by  means 
of  which  the  creditor  forecloses  his  mortgage  by  an  act  in  pais,  without 
calling  upon  any  Court  to  assist  him.  The  debtor  has  no  relief  in  that 
case,  but  by  applying  to  this  Court,  and  then  he  must  comply  with  the 
terms  of  paying  what  was  actually  advanced.  He  deprives  himself,  in 
that  case,  by  the  power  to  sell,  as  he  does  in  the  other,  by  his  warrant  of 
attorney  to  confess  judgment,  of  an  opportunity  to  appear  in  the  char- 
acter of  defendant  and  plead  the  usury.  These  are  cases  in  which  the 
party,  by  his  own  voluntary  act,  deprives  himself  of  his  ability  to  inflict 
upon  the  creditor  the  loss  of  his  entire  debt.  Many  other  cases  may  be 
stated  in  which  the  same  result  will  follow.  The  party  is  in  the  same 
situation  if,  instead  of  resisting  the  usurious  claim,  he  pays  it.  He  can- 
not then  expect  assistance  to  recover  back  more  than  the  usurious  excess.  If 
the  warrant  of  attorney,  or  the  power  to  sell,  were  procured  by  fraud,  or 
surprise,  or  accident,  that  would  form  a  distinct  head  of  relief,  and  in 
no  wise  applicable  to  the  case.  And,  perhaps,  it  is  sufficient  for  the  pur- 
poses of  public  justice,  and  public  policy,  that  the  law  has  enabled  a 
debtor,  in  every  case,  in  which  he  does  not  of  his  own  accord  deprive  him- 
self of  the  means,  to  plead  the  statute  in  discharge  of  his  usurious  con- 
tract, and  of  his  obligation  to  pay  even  what  was  received,  and  that  in 
all  cases  he  can,  by  paying  the  actual  principal  received,  and  the  lawful 
interest,  be  reliev^ed  from  the  usurious  exaction. 


2U  HANSON  V.  KEATING  [pabt  i. 


HANSON  V.  KEATING. 

In  Chancery^  before  Vice-Chancellor  Wigram^  1844/ 

[4  Hare  1.] 

Husband  and  wife  assigned  by  way  of  mortgage  the  equitable  interest 
of  the  husband  in  right  of  his  wife  in  a  term  of  years.  The  mortgagee 
filed  his  bill  against  the  husband  and  wife  and  the  trustee  of  the  legal 
estate,  for  a  foreclosure  and  assignment  of  the  term.^ 

Vice-Chancellor  : — 

The  argument  in  this  ease  for  the  Defendant  Mrs.  Keating  was 
founded  upon  the  well  established  rule  of  this  court,  that  the  plain- 
tiff who  would  have  equity  must  do  equity, — a  rule  by  which,  properly 
understood,  it  is  at  all  times  satisfactory  to  me  to  be  bound.  But  it  is  a 
rule  which,  as  it  was  used  in  the  argument  of  this  case,  takes  for  granted 
the  whole  question  in  dispute.  The  rule,  as  I  have  often  had  occasion  to 
observe,  cannot  per  se  decide  what  terms  the  Court  should  impose  upon 
the  plaintiff  as  the  price  of  the  decree  it  gives  him.  It  decides  in  the  ab- 
stract, that  the  Court,  giving  the  plaintiff  the  relief  to  which  he  is 
entitled,  will  do  so  only  upon  the  terms  of  his  submitting  to  give  the  de- 
fendant such  corresponding  rights  (if  any)  as  he  also  may  be  entitled 
to  in  respect  of  the  subject-matter  of  the  suit; — what  these  rights  are 
must  be  determined  aliunde  by  strict  rules  of  law,  and  not  by  any  arbi- 
trary determination  of  the  Court.  The  rule,  in  short,  merely  raises  the 
question  what  those  terms  (if  any)  should  be.  If,  for  example,  a  plain- 
tiff seeks  an  account  against  a  defendant,  the  Court  will  require  the 
plaintiff  to  do  equity  by  submitting  himself  to  account  in  the  same 
matter  in  which  he  asks  an  account; — the  reason  of  which  is,  that  the 
Court  does  not  take  accounts  partially,  and  perhaps  ineffectually,  but 
requires  that  the  whole  subject  be,  once  for  all,  settled  between  the 
parties.  It  is  only  (I  may  observe  as  a  general  rule)  to  the  one  matter 
which  is  the  subject  of  a  given  suit  that  the  rule  applies,  (Whitaker  v. 

^  Wigram  is  tlie  author  of  two  classics  of  the  profession :  An  Examination  of 
the  Rules  of  Law  respecting  the  Admission  of  Extrinsic  Evidence  in  the  In- 
terpretation of  Wills   (1831)  ;  Points  in  the  Law  of  Discovery   (1836). 

Of  his  standing  and  services  as  a  judge  Mr.  Foss  may  be  quoted:  "Sir  James 
Wigram  presided  over  his  court  for  nine  years  (1841-1850),  his  decrees  being 
remarkable  for  the  lucid  exposition  of  the  legal  principles  involved  in  the  cases 
on  which  he  had  to  adjudicate.  They  were  the  subject  of  general  approbation, 
and  were  highly  extolled  by  those  most  competent  to  form  a  judgment.  As 
roporied  by  Mr.  Tlioinas  llarc,  all  of  them  have  the  special  advantage  of  having 
been  seen  and  aj)provcd  by  the  judge  l)efore  publication."  (Lives  of  the 
Judges.) 

^This  sialciiiciil   of  the  case  is  taken  from   the  headnote. 


CHAP.  IV.]  HANSON  V.  KEATING  275 

Hall,  1  Glyn  &  Jam.  213),  and  not  to  distinct  matters  pending  between 
the  same  parties.  So,  in  the  case  of  a  bill  for  specific  performance,  the 
Court  will  give  the  purchaser  his  conveyance,  provided  he  will  fulfil  his 
part  of  the  contract  by  paying  the  purchase-money;  and,  e  converse,  if 
the  vendor  were  plaintiff,  the  Court  will  assist  him,  only  upon  condition 
of  his  doing  equity  by  conveying  to  the  purchaser  the  subject  of  the 
contract  upon  receiving  the  purchase-money.  In  this,  as  in  the  former 
case,  the  Court  will  execute  the  matter  which  is  the  subject  of  the  suit 
wholly,  and  not  partially.  So,  if  a  bill  be  filed  by  the  obligor  in  an 
usurious  bond,  to  be  relieved  against  it,  the  Court,  in  a  proper  case,  will 
cancel  the  bond,  but  only  upon  terms  of  the  obligor  refunding  to  the 
obligee  the  money  actually  advanced.  The  reasoning  is  analogous  to 
that  in  the  previous  cases.  The  equity  of  the  obligor  is  to  have  the  en- 
tire transaction  rescinded.  The  Court  will  do  this,  so  as  to  remit 
both  parties  to  their  original  positions:  it  will  not  relieve  the  obligor 
from  his  liability,  leaving  him  in  possession  of  the  fruits  of  the  illegal 
transaction  he  complains  of.  I  know  of  no  case  which  cannot  be  ex- 
plained upon  this  or  analogous  reasoning;  and  my  opinion  is,  that  the 
Court  can  never  lawfully  impose  merely  arbitrary  conditions  upon  a 
plaintiff,  only  because  he  stands  in  that  position  upon  the  record,  but 
can  only  require  him  to  give  the  defendant  that  which  by  the  law  of 
the  court,  independently  of  the  mere  position  of  the  party  on  the  record, 
is  the  right  of  the  defendant  in  respect  of  the  subject  of  the  suit.  A 
party,  in  short,  does  not  by  becoming  plaintiff  in  equity  give  up  any 
of  his  rights,  or  submit  those  rights  to  the  arbitrary  disposition  of  the 
Court.  He  submits  only  to  give  the  defendant  his  rights  in  respect  of 
the  subject-matter  of  the  suit,  on  condition  of  the  plaintiff  obtaining  his 
own.  Cases  may  perhaps  be  suggested  (some  cases  of  retainer,  for  ex- 
ample) in  which  a  question  never  can  arise  except  against  a  plaintiff; 
but,  as  a  general  proposition,  it  may,  I  believe,  be  correctly  stated,  that  a 
plaintiff  will  never,  in  that  character,  be  compelled  to  give  a  defendant 
anything  but  what  the  defendant  might,  as  a  plaintiff,  enforce,  provided 
a  cause  of  suit  arose:  Lady  Elihanh  v.  Montolieu,  5  Ves.  737,  Sturgis  v. 
Champneys,  5  Myl.  &  Cr.  102. 

I  have  gone  at  length  into  this  question,  because  the  opinion  I  have 
expressed — which  I  intimated  during  the  argument — was  combated  with 
great  earnestness,  and  was  said  to  be  opposed  to  the  opinion  of  Lord 
Cottenham  in  Sturgis  v.  Champneys.  I  do  not  so  understand  Lord 
Cottenham  in  that  case,  or  I  should  at  once  defer  to  his  judgment.  But 
I  do  know,  that,  in  one  of  his  most  elaborate  and  able  judgments, — I 
mean  that  in  Brown  v.  Newall,  2  Myl.  &  Cr.  558,  and  with  equal  clear- 
ness in  Agaheg  v.  Hartwell,  in  the  House  of  Lords,  5  CI.  &  Fin.  484, 
nom., — he  held,  that  a  party  loses  none  of  his  rights  by  becoming 
plaintiff  in  a  suit  in  equity.  The  Vice-Chancellor  of  England,  and  Lord 
Brougham,  on  appeal,  upon  the  general  ground  that  he  who  would 
have  equity  mu^t  do  equity,  required  the  plaintiff  in  the  latter  cause  to 


276  HANSON  v.  KEATING  [part  i. 

submit  to  an  account  of  certain  monies  he  had  in  his  hands,  in  which  the 
defendants  claimed  an  interest,  as  the  price  of  a  decree  for  an  account 
against  the  defendants;  there  being  no  necessary  connexion  between  the 
two  accounts.  This  decree,  therefore,  went  to  the  House  of  Lords  under 
every  circumstance  of  disadvantage.  The  House  of  Lords  investigated 
the  case  with  a  view  to  the  question,  whether  the  defendants  were  en- 
titled to  have  the  two  accounts  blended;  and  being  of  opinion  that  the 
defendants  had  no  such  equity,  the  decree  was  reversed. 

I  am  clear,  therefore,  that  T  am  not  bound  in  this  case  to  impose  upon 
the  PlaintiS  the  terms  required  by  the  Defendant,  only  because  he  is 
Plaintiff,  (for  that  was  the  argument  at  the  bar).  The  question  is,  what 
are  the  equitable  rights  of  the  parties  independently  of  their  relative 
positions  on  the  record.  Sir  Edward  Turner's  case,  1  Vern.  7,  if  it  be 
law,  answers  this  question.  Now  it  is  true,  that  some  judges  have 
thought  the  resolutions  in  that  case  questionable;  but  it  is  equally  true, 
that  they  have  considered  it  as  binding  upon  all  courts  until  the  House 
of  Lords  should  alter  its  own  resolutions:  Pitt  v.  Hunt,  1  Vern.  18, 
Jewson  V.  Moidson,  2  Ath.  417;  and,  unless  I  am  altogether  under  a  mis- 
take, Sir  Edward  Turner's  case  has  always  been,  and  is  at  this  day,  con- 
sidered law  by  conveyancers,  and  is  acted  upon  accordingly.  And  the 
more  strong  has  been  the  dissent  from  the  resolutions  in  that  case,  the 
more  do  the  judges  who  express  that  dissent  affirm  the  authority  of 
the  case  by  following  it.  I  believe  the  understanding  of  the  Profession 
prior  to  the  decision  in  Stiirgis  v.  Champneys  to  have  been,  that  Sir 
Edward  Turner's  case  was  in  accordance  with  the  principles  of  the  Court, 
and  I  advert  to  that  understanding  the  more,  not  only  because  the  Vice- 
Chancellor  of  England  concurs  in  it,  but  because  I  know  the  learned 
editor  of  Mr.  Roper's  book  on  the  Law  of  Husband  and  Wife  always 
lamented  the  decision  in  Sfurgis  v.  Champneys  as  having  in  his  opin- 
ion unsettled  the  law.  In  some  cases  of  mere  personalty  there  is  no 
doubt  of  the  wife's  equity.  But  prior  to  Sturgis  v.  Champneys,  the 
opinion  of  the  Profession  had,  I  believe,  become  settled,  that  estates  in 
land  were  not  subject  to  the  same  equity,  upon  the  broad  and  important 
principle  of  preserving  a  strict  analogy  between  legal  and  equitable 
estates  in  land.  In  the  case  of  Burdon  v.  Dean,  2  Ves.  jun.  607,  the  order 
was  made  by  consent,  and  Lord  Cottenham  notices  that  circumstance  in 
Sturgis  v.  Champneys. 

I  shall  not,  however,  decide  this  case  without  attentively  reading 
Sturgis  v.   Champneys  in  private. 

ViCK-ClIANCELLOR  : — 

At  the  close  of  the  argument  in  this  case,  I  stated  what  my  under- 
standing of  the  law  was;  and  I  reserved  to  myself  the  duty  only  of 
examining  the  case  of  Slurgis  v.  Champneys,  to  determine  whether  I 
ronld  act  in  this  case  upon  my  individual  opinion  as  to  the  law,  without 
directly  impugning  the  plain  tenor  of  Lord  Cottenham's  judgment  in 
that  case.    My  opinion  is  that  I  cannot  do  so,  and  therefore,  in  deference 


CHAP.  IV.]  HANSON  V.  KEATING  277 

to  that  judp:ment,  I  shall  follow  it,  although,  if  that  case  were  out  of 
the  way,  I  should  probably  have  decided  otherwise.  There  would  be  no 
difficulty  in  distinguishing  the  facts  of  this  case  from  those  in  Sturgis  v. 
Champnci/s ;  but  the  reasoning  in  that  case  would  remain,  and  I  cannot 
disregard  it. 


"The  invariable  maxim  of  equity  is  that  he  who  asks  equity  must  do  it. 
But  this  maxim  is  confined  exclusively  to  the  cases  in  which  there  is  an  equity 
between  the  parties,  where,  although  the  plaintiff  is  entitled  to  relief,  he  yet 
owes  in  conscience,  though  possibly  not  at  law,  a  debt  or  duty  to  the  de- 
fendant. T'Vonn's's  Max.  1.  In  such  cases  relief  is  given  on  condition  that 
the  plaintiff  does  what  in  conscience  he  is  bound  to  do  to  the  defendant.  An 
equity  which  any  third  person  may  have  against  the  plaintiff  can  never  be 
available,  under  this  maxim,  to  the  defendant." — Garland  v.  Rives  (1862)  4 
Rand.  282,  308. 

The  rule  is  applied  to  a  defendant  setting  up  an  equitable  defence.  "But 
the  maxim  'He  who  seeks  equity  must  do  equity'  is  as  appropriate  to  the 
conduct  of  the  defendant  as  to  that  of  the  complainant;  and  it  would  be 
strange  of  a  debtor  to  destroy  equality  and  accomplish  partiality,  could  ignore 
its  long  acquiescence  and  plead  an  unsubstantial  technicality  to  overthrow  pro- 
tracted, extensive  and  costly  proceedings  carried  on  in  reliance  upon  its  con- 
sent. Surely  no  such  imperfection  attends  the  administration  of  a  court 
of  equity.  Good  faith  and  early  assertion  of  rights  are  essential  on  the 
part  of  the  defendant  as  of  the  complainant." — Brown  v.  Lake  Superior  Iron  Co. 
(1889)   134  V.  8.  530,  535. 

The  maxim  applies  only  to  equities  arising  out  of  the  same  transaction, 
Whitaker  v.  Hall  (1822)  1  G.  &  J.  213,  not  to  unconnected  matters,  Wilson 
v.  Foiokes  (1852)  9  Hare  592,  and  the  equity  must  respect  the  subject  mat- 
ter of  the  suit.  Gibson  v.  Goldsmid  (1854)  5  De  G.  M.  &  G.  757;  U.  S.  v. 
McRae  (1867)  L.  R.  3  Ch.  app.  79. 

Pomeroy  considers  the  maxim  as  "not  wholly  a  rule  for  the  guidance  of 
the  equity  judge  in  measuring  out  and  apportioning  reliefs  among  liti- 
gants. It  has  exercised  a  moulding  influence  in  the  development  of 
important  branches  of  the  equity  jurisprudence;  certain  doctrines  are 
plainly  derived  from  it  as  their  chief  though  not  perhaps  their  only  source." 
After  naming  and  briefly  discussing  the  doctrines  of  election  and  marshalling 
as  being  derived  from  the  maxim,  he  concludes :  "A  few  other  doctrines  might, 
I  think,  be  specified  as  thus  related  by  a  common  descent:  but  enough  has 
already  been  said  to  show  the  gieat  importance  of  the  principle.  He  who 
seeks  equity  must  do  equity,  both  as  a  practical  rule  governing  the  adminis- 
tration of  remedies,  and  as  the  germ  of  equitable  doctrines." — 1  Equity  Juris- 
prudence,  §§   394,   395,   396. 

Mr.  Phelps  considers  this  to  be  one  of  the  maxims  that  "stand  pre-em- 
inently for  conscience."  He  regards  it  as  "of  universal  and  constant  applica- 
tion in  every  variety  of  case  in  which  a  plaintiff  seeks  to  set  in  motion  the  ma- 
chinery of  equity  for  purposes  of  injustice  or  oppression,  or  to  secure  an 
undue  advantage,  or  to  profit  by  his  own  wrong,  or  in  spite  of  his  own  neglect." 
He  considers  its  applications  to  be  the  Wife's  Equity,  Estoppel,  Election.  In- 
junction (in  certain  actions),  Partition,  Compensation,  and  Breach  of  Trust. — 
Judicial   Equity,   §§   244-255. 


278  BODLT  v.  [part  i. 


J), — He  Who  Seeks  Equity  Must  Come  in  with  Clean  Hands. 


EICH  V.  SYDENHAM. 

In  Chancery,  before  Lord  Keeper  Ashley,  1672. 

[1  Cases  in  Chancery  202.] 

The  plaintiff  upon  the  loan  of  90  I.  had  gotten  a  bond  from  the  de- 
fendant of  1600  I.  for  payment  of  800  I.  and  judgment  thereupon.  The 
defendant  in  the  right  of  his  wife  was  entitled  to  certain  lands  that  were 
estated  in  other  persons  in  law  in  trust  for  her. 

The  bill  was  to  have  those  lands  subjected  to  the  plaintiff's  satisfaction 
here,  inasmuch  as  the  defendant  was  entitled  to  the  trust  in  the  right  of 
his  wife. 

But  the  security  being  gotten  from  the  defenydant  when  he  was  drunk, 
the  Lord  Keeper  would  not  give  the  plaintiff  any  relief  in  equity,  not 
so  much  as  for  the  principal  he  had  really  lent;  and  so  the  bill  was 
dismissed.^ 


BODLY  V. 


In  Chancery,  before  Lord  Chancellor  Nottingham,  1680-81. 
[2  Cases  in  Chancery  15.] 

Bodly  gave  bond  of  500  I.  to  the  brother  of  the  defendant,  conditioned 
to  pay  to  the  defendant's  sister  (partly  also  to  the  bill)  50  Z.  and  to  main- 
tain a  base  child  paying  a  certain  yearly  sum  for  it.  There  was  no  place 
in  the  condition  where  the  50  I.  should  have  been  paid.  The  plaintiff 
by  his  bill  offers  payment  of  the  50  I.  and  brought  it  into  court,  and  the 
defendant  set  forth  by  answer  that  the  plaintiff  was  suiter  to  her  in  way 
of  marriage,  but  abused  her  and  left  her,  and  thereupon  the  court  re- 
fused to  grant  an  injunction  to  the  plaintiff  against  the  suit  on  the 

^  "A  suit  in  equity  is  an  appeal  for  relief  to  the  moral  sense  of  the  chancellor. 
A  court  of  equity  is  the  forum  of  conscience.  Nothing  but  good  faith,  the 
obligations  of  duty,  and  reasonable  diligence  will  luove  it  to  action.  Its 
decree  is  the  exercise  of  discretion, — not  of  an  arbitrary  and  fickle  will,  but 
of  a  wise  judicial  discretion,  controlled  and  guided  by  the  established 
rules  and  principles  of  equity  jurisprudence.  One  of  the  most  salutary  of 
these  principles  is  expressed  by  the  maxims,  "He  who  comes  into  a  court  of 


CHAP.  IV.]  THE  HIGHWAYMAN'S  CASE  279 

bond;  the  plaintiff  replied  and  acknowledged  he  was  a  suitor,  and  really 
intended  marriage,  but  that  after  he  had  begun  to  woo  the  woman,  he 
was  informed,  as  the  truth  was,  that  she  had  formerly  been  taken  in  a 
bed  with  another  man,  and  that  this  was  known  publicly,  and  her  father 
trepanned  him  to  woo  her,  &c.  he  being  a  young  man  in  Oxford.  Yet 
now  the  Lord  Chancellor  denied  the  injunction  saying,  this  court  should 
not  be  a  court  to  examine  such  matters. 


THE  HIGHWAYMAN'S  CASE. 

Exchequer^  1725. 
[2  Evans'  Pothier  on  Obligations,  3,  n.  1.'] 

The  bill  stated  that  the  plaintiff  was  skilled  in  dealing  in  several 
commodities,  such  as  plate,  rings,  watches,  &c. ;  that  the  defendant 
applied  to  him  to  become  a  partner;  that  they  entered  into  partner- 
ship, and  it  was  agreed  that  they  should  equally  provide  all  sorts  of 
necessaries,  such  as  horses,  saddles,  bridles,  and  equally  bear  all  ex- 
penses on  the  road,  and  at  inns,  taverns,  or  ale  houses,  or  at  markets, 
or  fairs. 

"  And  your  orator,  and  the  said  Joseph  Williams  proceeded  jointly 
in  the  said  business  with  good  success  on  Houuslow-Heath,  when  they 
dealt  with  a  gentleman  for  a  gold  watch,  and  afterwards  the  said 
Joseph  Williams  told  your  orator  that  Finchley,  in  the  County  of 
Middlesex,  was  a  good  and  convenient  place  to  deal  in,  and  that 
commodities  were  very  plenty  at  Finchley  aforesaid,  and  it  would  be 
almost  all  clear  gain  to  them;  that  they  went  accordingly,  and  dealt 
with  several  gentlemen  for  divers  watches,  rings,  swords,  canes,  hats, 
cloaks,  horses,  bridles,  saddles,  and  other  things;  that  about  a  month 
afterwards  the  said  Joseph  Williams  informed  your  orator  that  there 

equity  must  come  with  clean  hands,"  and  "He  who  has  done  iniquity  cannot 
have  equity."  A  court  of  equity  will  leave  to  his  remedy  at  law — will  refuse 
to  interfere  to  grant  relief  to — one  who,  in  the  matter  or  transaction  con- 
cerning which  he  seeks  its  aid,  has  been  wanting  in  good  faith,  honesty,  or 
righteous  dealing.  While  in  a  proper  case  it  acts  upon  the  conscience  of  a 
defendant,  to  compel  him  to  do  that  which  is  just  and  right,  it  repels  from 
its  precincts  remediless  the  complainant  who  has  been  guilty  of  bad  faith, 
fraud,  or  any  unconscionable  act  in  the  transaction  which  forms  the  basis  of 
his  suit.  19  L.  Ed.  955."— Michigan  Pipe  Co.  v.  Freem  Ditch  etc.  Co.  (1901)  111 
Fed.  285,  at  287,  Sanhorn,  Circuit  Judge. 

^  This  case,  under  the  name  of  Everett  t'.  Williams,  was  originally  reported 
in  European  Magazine  for  May,  1787,  vol.  1,  360. 


280  Mcmullen  v.  hoffman  [part  i. 

was  a  gentleman  at  Blackheath  who  had  a  good  horse,  saddle,  bridle, 
watch,  sword,  cane,  and  other  things  to  dispose  of,  which  he  believed 
might  be  had  for  little  or  no  money ;  that  they  accordingly  went,  and 
met  with  the  said  gentleman,  and  after  some  small  discourse  they  dealt 
for  the  said  horse,  &c. ;  that  your  orator  and  the  said  Joseph  Williams 
continued  their  joint  dealing  together  until  Michaelmas,  and  dealt 
together  in  several  places,  viz.,  at  Bagshot  in  Surrey,  Salisbury  in  Wilt- 
shire, Hampstead  in  Middlesex,  and  elsewhere  to  the  amount  of  £2,000 
and  upwards." 

The  rest  of  the  bill  is  in  the  ordinary  form  for  a  partnership  account. 
3d  October,  1725,  on  the  motion  of  Sergeant  Girdler,  the  bill  referred 
for  scandal  and  impertinence.  29th  November,  report  of  the  bill  as 
scandalous  and  impertinent  confirmed;  and  order  to  attach  White  and 
Wreathcock,  the  solicitors.  6th  December.  The  solicitors  brought  into 
court  and  fined  £50  each;  and  ordered  that  Jonathan  Collins,  Esq.,  the 
counsel  who  signed  the  bill,  should  pay  the  costs.  The  plaintiff  was 
executed  at  Tyburn  in  1730,  the  defendant  at  Maidstone  in  1735. 
Wreathcock,  the  solicitor,  was  convicted  of  robbing  Dr.  Lancaster  in 
1735,  but  reprieved  and  transported.' 


McMuLLEN  V.  HoFPJiAN  (1898)  174  U.  S.  639,  654.— Mr.  Justice 
Peckham.  There  are  several  old  and  very  familiar  maxims  of  the 
common  law  which  formulate  the  results  of  that  law  in  I'egard  to 
illegal  contracts.  They  are  cited  in  all  law  books  upon  the  subject  and 
are  known  to  all  of  us.  They  mean  substantially  the  same  thing  and  are 
founded  upon  the  same  principles  and  reasoning.  They  are:  Sx  dolo 
malo  non  oritur  actio;  Ex  pacto  illicito  non  oritur  actio;  Ex  turpi  causa 
non  oritur  actio.  About  the  earliest  illustration  of  this  doctrine  is  al- 
most traditional  in  the  famous  case  of  The  Highwayman.  It  is  stated 
that  Lord  Kenyon  once  said,  by  way  of  illustration,  that  he  would  not  sit 
to  take  an  account  between  two  robbers  on  Hounslow  Heath,  and  it  was 

^In  Ridler  v.  Moore  (1797)  Clifford's  Southwark  Election  Cases,  371, 
KIenyon,  C.  J.,  is  reported  to  have  said:  "He  had  heard  of  a  bill  filed  in  the 
Court  of  Chancery,  to  obtain  an  account  of  the  profits  of  a  partnership 
trade  carried  on  at  Hounslow,  but  when  it  appeared  that  the  trade  was  taking 
the  purses  of  those  who  travelled  over  the  heath,  the  Court  would  not  endure 
it." 

In  a  still  earlier  case,  (before  Loud  Mansfield)  Faikney  v.  Reynons 
(1707)  4  Burr.  2009,  2071,  the  principal  case  was  cited  as  an  authority  by 
counsel. 

The  case  was  lonf^  regarded  as  a  jest  or  hoax  of  some  equity  draftsman, 
but  a  careful  examination  of  the  original  records  by  Sir  Frederick  Pollock 
has  established  its  genuineness.  As  Sir  Frederick  exclaims:  "Truth  is  stranger 
than  fiction!"     Sec  9  Law  Quarterly  lleview,  105,  197-199. 


CHAP.  IV.]  McMULLEN  v.  HOFFMAN  281 

questioned  whether  the  legend  in  regard  to  the  highwayman  did  not 
arise  from  that  saying.  It  seems,  however,  that  the  ease  was  a  real  one. 
He  did  file  a  bill  in  equity  for  an  accounting  against  his  partner,  al- 
though it  was  no  sooner  filed  and  its  real  nature  discovered  than  it  was 
dismissed  with  costs,  and  the  solicitors  for  the  plaintiff  were  summarily 
dealt  with  by  the  court  as  for  a  contempt  in  bringing  such  a  case  before 
it.  (1  Lindley  on  Partnership,  5th  ed.  94,  note  n;  9  Law  Quarterly 
Review,  (London)  pp.  105 — 197. 

The  authorities  from  the  earliest  time  to  the  present  unanimously 
hold  that  no  court  will  lend  its  assistance  in  any  way  towards  carrying 
out  the  terms  of  an  illegal  contract.  In  case  any  action  is  brought  in 
which  it  is  necessary  to  prove  the  illegal  contract  in  order  to  maintain 
the  action,  courts  will  not  enforce  it,  nor  will  they  enforce  any  illegal 
rights  directly  springing  from  such  contract.  In  cases  of  this  kind  the 
maxim  is  Potior  est  conditio  defendentis. 

The  foJlowing  are  only  a  few  of  the  numerous  cases  upon  the  subject 
in  England  and  in  this  country:  Ilolman  v.  Johnson,  (1775)  1  Cowper, 
341;  Booth  v.  Hodgson,  (1795)  6  T.  R.  405;  Thomson  v.  Thomson, 
(1802)  7  Ves.  468;  Shiffner  v.  Gordon,  (1810)  12  East,  296;  Sykes  v. 
Beadon,  (1879)  L.  R.  11  Ch.  Div.  170;  Scott  v.  Brown,  (1892)  2  Q.  B. 
D.  724;  Belding  v.  Pitkin,  (1804)  2  Caines,  147a;  Atcheson  v.  Motion, 
(1870)  43  N.  Y.  147;  Leonard  v.  Poole,  (1889)  114  N.  Y.  371;  Wheeler  v. 
Russell,  (1821)  17  Mass.  258,  281;  Snell  v.  Dwight,  (1876)  120  Mass.  9; 
Marshall  v.  Baltimore  &  Ohio  Railroad  Co.,  (1853)  16  How.  314,  334; 
McBlair  v.  Gihhes,  (1854)  17  How.  232;  Coppell  v.  Hall,  (1868)  7  Wall. 
642 ;  Trist  v.  Child,  (1874)  21  Wall.  441,  448 ;  Woodstock  Iron  Company 
V.  Richm.ond  &  Danville  Extension  Co.,  (1888)  129  U.  S.  643;  1  Lindley 
on  Partnership,  5th  ed.  93,  note,  giving  the  result  of  the  American 
cases.' 

^  "The  plaintiff,  on  the  fraudulent  representations  that  a  foot  race  had 
been  'fixed'  and  that  he  would  be  allowed  to  share  in  the  winnings,  was  in- 
duced to  bet  money  of  the  defendants,  as  though  it  was  his  own.  He  was  also 
persuaded  to  put  up  $5,000  of  his  own  with  the  stake  holder  "to  make  a 
showing,"  as  he  was  informed  in  the  event  a  count  of  the  stake  money  was 
demanded.  As  a  matter  of  fact  all  the  money  [bet]  on  both  sides  belonged 
to  the  defandants,  who  had  thus  conspired  to  swindle  the  plaintiff.  Held, 
although  the  plaintiff  was  in  delicto,  he  was  not  in  pari  delicto  with  the  con- 
spirators, and  when  the  plaintiff  demanded  back  his  money  before  the  pre- 
tended race  was  run,  the  plea  of  moral  turpitude  constituted  no  defence. 
Wripht  V.  Stewart  et  al.   (H)04)    130  Fed.  905. 

"The  law  encourages  a  repudiation  of  an  illegal  contract  and  allows  a  locus 
peritential  to  the  guilty  participator  as  long  as  it  remains  an  executory  eon- 
tract  and  the  illegal  purpose  is  not  put  into  execution.  Bernard  i\  Taylor 
(1893)  23  Ore.  416.  It  has  been  held  otherwise  after  the  delictum  has  been 
consummated.  Abbe  v.  Marr  (1859)  14  Cal.  210;  Anonymous  (1889)  10  Ohio 
Dec.  649.  There  is  a  decided  tendency  among  courts  and  text-writers  to  dis- 
tinguish between  degrees  of  guilt  in  such  cases  on  the  theory  that  the  delib- 


282  DERING  v.  EARL  OF  WINCHELSEA  [part  i. 

BERING  V.  EARL  OF  WINCHELSEA. 

In  Chancery,  before  Lord  Chief  Baron  Eyre,  1787. 
[1  Cox  Chancery  318.] 

Thomas  Bering,  Esq.  having  been  appointed  collector  of  some  of  the 
duties  belonging  to  the  customs,  it  became  necessary  upon  such  appoint- 
ment for  him  to  enter  into  bonds  to  the  crown  with  three  securities  for 
the  due  performance  of  this  office.  Sir  Edward  Bering  his  brother,  the 
Earl  of  Winchelsea,  and  Sir  John  Rous,  having  agreed  to  become 
sureties  for  him,  a  joint  and  several  bond  was  executed  by  Thomas 
Bering  and  Sir  Edward  Bering  to  the  crown  in  the  penalty  of  4000  I., 
another  joint  and  several  bond  by  Thomas  Bering  and  the  Earl  of 
Winchelsea,  and  a  third  by  Thomas  Bering  and  Sir  John  Rous  in  the 
same  penalty  of  4000  I.,  all  conditioned  alike  for  the  due  performance 
of  Thomas  Bering's  duty  as  collector.  Mr.  Bering  being  in  arrear  to 
the  crown  to  the  amount  of  3883  I.  14  s.,  the  crown  put  the  first  bond  in 
suit  against  Sir  Edward  Bering,  and  judgment  was  obtained  thereon  for 
that  sum:  whereupon  Sir  Edward  filed  his  bill  against  the  Earl  of 
Winchelsea  and  Sir  John  Rous,  claiming  from  them  a  contribution  to- 
wards the  sum  so  recovered  against  him. 

The  cause  had  been  argued  at  length,  in  Michaelmas  Term  last,  and 
now  stood  for  judgment. 

Lord  Chief  Baron  [Eyre]. — This  bill  is  brought  by  one  surety  against 
his  two  co-sureties,  under  the  circumstances  above  mentioned.  Mr. 
Bering's  appointment,  the  three  bonds,  and  the  judgment  against  the 
plaintiff,  are  in  proof  in  the  cause;  the  original  balance  due,  and  the 
present  state  of  it,  are  admitted.  The  demand  is  resisted  on  two 
grounds :  1st,  that  there  is  no  foundation  for  the  demand  in  the  nature 
of  the  contract :  and  2dly,  that  the  conduct  of  Sir  Edward  Bering  has 
been  such  as  to  disable  him  from  claiming  the  benefit  of  the  contract, 
though  it  did  otherwise  exist.  There  is  also  a  formal  objection  which  I 
shall  take  notice  of  hereafter.  I  shall  consider  the  second  ground  of 
objection  first,  in  order  to  lay  it  out  of  the  case.  The  misconduct  im- 
puted to  Sir  Edward  is,  that  he  encouraged  his  brother  in  gaming  and 
other  irregularities;  that  he  knew  his  brother  had  no  fortune  of  his  own, 
and  must  necessarily  bo  making  use  of  the  public  money,  and  that  Sir 
Edward  was  privy  to  his  brother's  breaking  the  orders  of  the  Lords  of 
the  Treasury,  to  keep  the  money  in  a  i)articular  box,  and  in  a  particular 

erate  swindler  should  not  be  able  to  protect  himself  by  the  legal  maxim  7n 
pari  delicto  potior  est  conditio  possidentis.'  Pomcroy,  Equity  II,  Sec.  942; 
Smith  V.  Blacldey  (1898)  188  Pa.  St.  550;  Timmerman  v.  Bidwell  (1886) 
62  Mich.  205."   4  Columbia  Law  Review  604. 


CHAP.  IV.]         BERING  V.  EARL  OF  WINCHELSEA  28.3 

manner,  &c.  This  may  all  be  true,  and  such  a  representation  of  Sir 
Edward's  conduct  certainly  places  him  in  a  bad  point  of  view;  and  per- 
haps it  is  not  a  very  decorous  proceeding  in  Sir  Edward  to  come  into 
this  court  under  these  circumstances:  he  might  possibly  have  involved 
his  brother  in  some  measure,  but  yet  it  is  not  made  out  to  the  satisfac- 
tion of  the  court,  but  these  facts  will  constitute  a  defence.  It  is  argued 
that  the  author  of  the  loss  shall  not  have  the  benefit  of  a  contribution; 
but  no  cases  have  been  cited  to  this  point,  nor  any  principle  which  ap- 
plies to  this  case.  It  is  not  laying  down  any  principle  to  say  that  his  ill 
conduct  disables  him  from  having  any  relief  in  this  court.  If  this  can 
be  founded  on  any  principle,  it  must  be,  that  a  man  must  come  into  a 
Court  of  Equity  with  clean  hands;  but  when  this  is  said,  it  does  not 
mean  a  general  depravity;  it  must  have  an  immediate  and  necessary 
relation  to  the  equity  sued  for;  it  must  be  a  depravity  in  a  legal  as  well 
as  in  a  moral  sense.^  In  a  moral  sense,  the  companion,  and  perhaps  the 
conductor,  of  Mr.  Bering,  may  be  said  to  be  the  author  of  the  loss,  but 
to  legal  purposes,  Mr.  Bering  himself  is  the  author  of  it ;  and  if  the  evil 
example  of  Sir  Edward  led  him  on,  this  is  not  what  the  court  can  take 
cognizance  of.  Cases  indeed  might  be  put  in  which  the  proposition 
would  be  true.  If  a  contribution  were  demanded  from  a  ship  and  cargo 
for  goods  thrown  overboard  to  save  the  ship,  if  the  plaintiff  had  actually 
bored  a  hole  in  the  ship,  he  would  in  that  case  be  certainly  author  of  the 
loss,  and  would  not  be  entitled  to  any  contribution.  But  speaking  of  the 
author  of  the  loss  is  a  mere  figure  of  speech  as  applied  to  Sir  Edward 
Bering  in  this  case.^ 

'  The  earlier  form  of  the  maxim  seems  to  have  been,  "He  that  hath  com- 
mitted iniquity,  shall  not  have  equity." — Francis,  Maxims  of  Equity  5, 
where  a  number  of  early  cases  involving  the  principle  are  cited  and  digested. 

Mr.  Spence  cites  this  passage  with  the  remark  that  this  principle  is  a  "de- 
scendant" of  the  other,  He  who  seeks  equity  must  do  equity. — 1  Spence, 
Jurisdiction  of  the  Court  of  Chancery  423,  n.    (a). 

As  to  what  circumstances  will  constitute  such  a  legal  iniquity  see  Wardour 
V.  Berisford  (1687)  1  Vern.  452,  when  a  defendant  had  a  degree  on  a  bill 
for  an  accounting  of  personal  estate  ct  a  deceased,  because  the  plaintiff  had 
broken  the  seal  of  a  packet  of  papers  containing  the  statements  of  the  ac- 
count, which  had  been  sealed  by  the  deceased  and  left  in  the  plaintiff's  handg. 
It  does  not  appear  in  the  case  that  any  papers  were  shown  to  be  missing  or 
tampered  with,  though  a  reporter's  note  states  that  the  entry  in  the  Reg.  Lib. 
shows  that  the  court  found  that  some  of  the  papers  were  missing. 

-  The  balance  of  the  opinion,  relating  to  contribution  among  co-sureties, 
has  been  omitted. 


284  CADMAN  v.   HORNER  [part  i. 

CADMAN  V.   HORNER. 

In  Chancery,  before  Sir  William  Grant,  M.  R.,  1810/ 

[18  Vesey  Junior  10.] 

The  Bill  prayed  the  specific  performance  of  an  agreement,  by  which 
the  Defendant  contracted  to  sell  the  fee-simple  of  certain  premises  for 
the  sum  of  600Z.,  payable  by  instalments.  The  agreement  was  signed  by 
both  parties;  and  the  Defendant  having  received  part  of  the  purchase- 
money,  resisted  the  performance  on  the  ground,  that  the  Plaintiff,  who 
was  his  agent,  had  misrepresented  the  value  of  the  estate ;  producing 
evidence,  that  it  was  worth  near  1200L ;  also  that,  the  Plaintiff  had  pre- 
viously to  the  agreement  represented  to  him,  that  the  houses  had  been 
injured  by  a  flood,  and  would  require  between  60L  and  60Z.  to  repair 
them ;  whereas  in  truth  the  premises  at  the  time  of  the  contract  required 
no  more  than  forty  shillings  to  put  them  in  complete  repair.  No  evi- 
dence of  the  value  of  the  premises  was  entered  into  by  the  Plaintiff: 
but  the  Defendant  in  his  answer  admitted,  that  the  clear  yearly  rent 
amounted  to  49Z. ;  and  stated,  that  in  1805  he  had  purchased  these  prem- 
ises for  700Z. ;  and  had  afterwards  expended  300L  in  repairing  them. 

The  Master  of  the  Rolls. 

The  evidence  of  the  inadequacy  of  the  price  in  this  case  is  considerably 
shaken  by  the  Defendant's  admission  of  the  clear  rent  of  the  premises. 
It  is  difficult  to  conceive,  that  he  could  be  ignorant  of  the  value ;  having 

*  Lord  Kingsdowne  considered  Sir  William  Grant  the  ideal  and  model 
judge,  even  superior  to  Lord  Eldon.  Indeed,  Sir  Samuel  Romilly  suggested  that 
the  surest  way  to  work  off  Lord  Eldon's  arrears  was  to  confine  Eldon  to  his 
quarters  and  have  Grant  sit  for  him,  or  to  quote  the  exact  language:  "A  year's 
illness  of  His  Lordship  would  enable  the  Master  of  the  Rolls,  who,  upon  such 
occasions  was  always  accustomed  to  supply  the  Chancellor's  place,  to  get  rid, 
with  his  ordinary  despatch  of  business,  of  the  whole  an-ear."  Memoirs  of  Sir 
Samuel  Romilly,  vol.   III.,   186. 

The  greatness  of  Sir  William  Grant  was  not  lost  upon  the  noble  Lord  him- 
self. For  example:  "I  feel  therefore  a  strong  inclination  of  opinion  upon  this 
question;  but  I  shall  not  hold  any  opinion  of  my  own  without  doubt,  where  the 
Master  of  the  Rolls  has  held  directly  the  contrary."  [James  v.  Dean  (1804-5) 
11  Vcs.  ;58.3,  ."JOl.]  And  on  another  and  later  occasion  Lord  Eldon  said:  "I  feel 
that,  in  differing,  in  case  I  should  find  myself  bound  to  difi'er  from  so  great  a 
judge,  my  own  decision  will  not  hereafter  possess  all  the  authority  which  might 
otherwise  attach  to  it."    [Mills  v.  Farmer   (1815)    1  Meriv.  55,  94.] 

The  following  summing  up  of  the  qualities  of  this  great  judge  may  well  be 
permitted :  "Thouf,'h  Grant  had  acquired  a  far  greater  reputation  as  a  parlia- 
mentary orator  than  as  a  leader  of  a  chancery  bar,  his  success  as  a  jiulge  was 
remarkable.  Charles  Butler  declared  tliat  'The  most  perfect  model  of  judicial 
eloquence'  wliich  had  comic  under  his  observation  was  that  of  Sir  William  Grant. 


CHAP.  IV.]  CADMAN  V.  HORNER  285 

so  recently  purchased  the  estate;  and  laid  out  money  in  the  improve- 
ment of  it;  and  it  is  not  easy  to  comprehend  his  conduct:  nor  does  mis- 
representation by  the  Plaintiff  in  regard  to  what  was  requisite  for 
the  repairs  of  the  houses  by  any  means  account  for  the  disparity  be- 
tween the  price,  paid  for  the  estate,  and  the  sum,  at  which  the  witnesses 
value  it:  yet,  as  upon  the  evidence  the  Plaintiff  has  been  guilty  of  a 
degree  of  misrepresentation,  operating  to  a  certain,  though  small,  extent, 
that  misrepresentation  disqualifies  him  from  calling  for  the  aid  of  a 
Court  of  Equity;  where  he  must  come,  as  it  is  said,  with  clean  hands. 
He  must,  to  entitle  him  to  relief,  be  liable  to  no  imputation  in  the  trans- 
action. Viscount  Clermont  v.  Tashurgh,  1  Jac.  &  Walk.  112.  Wall  v. 
Stuhhs,  1  Madd.  80.  This  is  not  a  case,  where  the  Court  is  called  upon 
to  rescind  an  agreement,  and  to  decree  the  conveyance,  executed  in  pur- 
suance of  it,  to  be  delivered  up  to  be  cancelled;  which  would  admit  a 
different  consideration.  Savage  v.  Brocksopp,  VI,  328,  and  the  notes, 
541.  post,  335.  Ante,  Marquis  of  I,  226.  Lowndes  v.  Lane,  Townshend 
V.  Stangroom,  Vol.  2  Cox,  263. 

The  Bill  was  dismissed  without  costs.' 

'His  exposition  of  facts,  and  of  the  consequences  deducible  from  them,  his  dis- 
cussion of  former  decisions,  and  showing  their  legitimate  weight  and  authority, 
and  their  real  bearings  upon  the  point  in  question,  were  above  praise ;  but  that 
the  whole  was  done  with  such  admirable  care  and  simplicity  that,  while  real 
judges  felt  its  supreme  excellence,  the  herd  of  hearers  believed  that  they  should 
in  his  'Diary,'  referring  to  Grant's  resignation,  says:  'His  eminent  qualities 
have  done  the  same.'  Reminiscences,  4th  edition,  I,  134-5.  While  Romilly 
as  a  judge,  his  patience,  his  impartiality,  his  courtesy  to  the  bar,  his  despatch, 
and  the  masterly  style  in  which  his  judgments  were  pronounced,  would  at  any 
time  have  entitled  him  to  the  highest  praise.'  Memoirs,  1840,  III.,  324-5. 
Though  a  tory  in  politics.  Grant  supported  Romilly's  reform  of  the  criminal 
law,  while  his  speech  in  defence  of  the  definitive  treaty  of  peace  actually  secured 
the  approbation  of  Bentham,  who  pronounced  him  to  be  'an  animal  sui  generis 
amongst  lawyers,  and  indeed'  amongst  parliamentary  men,'  and  added,  'The 
notions  of  the  master  about  colonies  approach  nearer  to  what  I  call  reason 
than  those  of  almost  anybody  else  I  have  met  with.'  "  Dictionary  Biogi'aphy, 
Article,   Grant. 

Finally,  it  may  be  said  that  Lord  Kingsdowne  considered  Sir  William  Grant 
as  second  only,  if  indeed  second  only,  to  Lord  Stowell  in  the  domain  of  inter- 
national law. 

'  "The  misconduct  of  Mosher  was  intimately  connected  with  the  entire 
matter  in  litigation  here.  It  was  in  relation  to  a  part  of  the  common  fund 
and  property  which  is  the  subject  of  the  action.  The  court  might  therefore 
according  to  the  settled  maxims  of  equity  jurisprudence,  decline  to  act  at 
plaintiff's  instance.  Discussing  the  principle  on  which  courts  of  equity  refuse 
to  act  in  the  enforcement  of  unconscionable  claims,  Mr.  Pomeroy  says:  'It 
assumes  that  the  suitor  asking  the  aid  of  a  court  of  equity  has  himself  been 
guilty  of  conduct  in  violation  of  the  fundamental  conceptions  of  equity 
jurisprudence,  and  therefore  refuses  him  all  recognition  and  relief  with  refer- 
ence to  the  subject-matter  or  transaction  in  question.     It  says  that  whenever 


286  MASSI  V.  LAVINE  [part  i. 

MASSI  V.  LAVINE. 
In  the  Supreme  Court  of  Michigan,  1905. 

[102  Northwestern  Reporter  665.] 

Suit  by  August  Massi  and  another  against  Morris  Lavine  and  another. 
From  a  decree  for  the  defendants,  the  complainants  appeal. 

The  purpose  of  this  suit  is  to  obtain  the  cancellation  of  a  deed  made 
by  complainants  to  defendant  Morris  Lavine.  The  complainant  Massi 
was  surety  on  a  bond  for  $500.  Being  threatened  with  suit  on  it,  he 
deeded  to  the  defendant  property  worth  $2,500,  in  order,  as  he  alleged,  to 
avoid  liability  on  this  bond,  it  being  understood  between  the  parties 
that  the  defendant  should  deed  the  property  back  when  "  the  trouble  was 
over."  The  defendant  insisted  the  whole  transaction  was  bona  fide,  and 
that  he  had  given  value  for  the  property.' 

Grant,  J.  (after  stating  the  facts).  The  main  issue  of  fact  in  the  case 
is,  was  the  sale  a  bona  fide  one,  and  the  consideration  paid,  or  was  the 
title  transferred  to  assist  the  complainant  August  Massi  to  avoid  the 
payment  of  a  debt  ?  Upon  this  the  testimony  was  in  direct  conflict. 
There  is  no  room  to  find  that  either  is  mistaken.  Either  the  one  or  the 
other  has  committed  perjury.  Each  has  produced  some  corroborating 
evidence  to  support  his  version.  We  find  it  unnecessary  to  determine 
this  controversy,  as  the  case  must  be  determined  upon  the  complainants^ 
own  evidence. 

a  party  who,  as  actor,  seeks  to  set  the  judicial  machinery  in  motion  and  ob- 
tain some  remedy,  has  violated  conscience  or  good  faith,  or  other  equitable 
principle  in  his  prior  conduct,  then  the  doors  of  the  court  will  be  shut  against 
him  in  limine;  the  com-t  will  refuse  to  interfere  on  his  behalf,  to  acknowl- 
edge his  right,  or  to  award  him  in  remedy.'  (1  Pomeroy,  Equity  Jurisprudence, 
sec.  397.)  A  familiar  illustration  of  the  doctrine  is  found  in  cases  where 
courts  have  declined  to  grant  specific  performance  of  valid  contracts,  be- 
cause unfairly  obtained.  The  plaintiff  in  this  case  bases  his  action  on  an 
unconscionable  claim.  He  occupies  no  higher  ground  than  his  assignor.  With- 
out offering  to  do  equity,  he  has  no  claim  upon  a  court  of  conscience."  Lewis 
v.  Holdredfjc   (1808)    56  ^'eb.  379,  382. 

"It  is  not  every  unfounded  claim  Avhich  a  man  may  make,  or  unfounded 
defence  which  he  may  set  up,  which  will  bar  him  from  proceeding  in  a  court 
of  equity.  The  rule  that  he  who  comes  into  equity  must  come  with  clean 
hands  must  be  understood  to  refer  to  wilful  misconduct  in  regard  to  the 
matter  in  litigation.  Sncll's  Principles  35.  All  the  illustrations  given  in 
Francis,  p.  5,  under  the  maxim,  as  he  states  it,  'He  that  hath  committed 
inirpiity  shall  not  have  equity'  show  this."  Lewis  cG  Nelson's  Appeal  (1870) 
67  Pa.  Ht.  153,  IfiO. 

See  note  to  the  j)riticipal  case  as  reported  in  Summer's  Edition  of  Vcsey^ 

*  The  statement  of  facts  has  been  abridged. 


CHAP.  IV.]  MASSI  V.  LAVINE  287 

No  fiduciary  or  confidential  relation  existed  between  Mr.  Massi  and 
Mr.  Lavine.  They  were  dealing?  with  each  other  at  arm's  length.  They 
had  had  various  business  transactions  top:etliGr  for  some  years.  The 
land  conveyed  is  conceded  to  be  worth  $2,500,  the  consideration  expressed 
in  the  deed.  The  bond  signed  by  Mr.  Massi  with  another  bondsman  was 
for  $500.  He  claims  that  he  was  threatened  only  with  the  payment  of 
$115.  This  was  contingent  upon  his  principal,  the  administratrix,  not 
performing  her  duty.  The  letter  which  he  relies  upon  as  containing  the 
threat  to  enforce  the  claim  against  him  only  asked  him  to  see  that  the 
administratrix  performed  her  duty.  He  apparently  took  no  steps  to  that 
end.  He  was  accustomed  to  business  affairs.  He  had  80  acres  of  land 
besides  that  involved  in  this  suit,  which  he  did  not  transfer.  I  can  reach 
no  other  conclusion  from  his  own  testimony  than  that  he  conveyed  this 
land,  worth  $2,500,  to  avoid  a  liability  of  only  $115.  He  does  not  come 
into  court  with  clean  hands,  and  equity  will  leave  him  in  the  bed  he  chose 
to  make.  Under  his  own  testimony,  he  is  not  entitled  to  relief.  The 
record  does  not  justify  a  finding  that  this  is  a  case  where  the  stronger 
has  overpowered  the  weaker,  or  the  superior  has  taken  advantage  of  the 
inferior,  and  by  his  persuasion  and  influence  has  procured  an  unlawful 
act  to  be  done.  The  case  falls  within  Poppe  v.  Poppe,  114  Mich.  649, 
72  N.  W.  612,  68  Am.  St.  Rep.  503. 

The  decree  is  affirmed,  with  costs.' 

'"The  statute  13  Eliz.  c.  5,  against  fraudulent  conveyances,  applies  to  con- 
tingent liability,  Gannard  v.  Eslava  (1852)  20  Ala.  732,  741;  hence  to  sure- 
ties. Bay  V.  Vook  (1863)  31  111.  337,  347.  Such  a  conveyance  is  valid  as  be- 
tween the  parties,  Proscus  v.  Mclntyre  (1849)  5  Barh.  424;  but  the  courts 
generally  will  not  entertain  a  suit  to  put  the  grantee  in  possession,  Southenv 
Ev.  Co.  V.  Diiffey  (1873)  48  Ga.  358;  Kirkpatrick  v.  Clark  (1890)  132  III.  342; 
for  that  would  be  executing  the  illegality.  Medians  v.  Granberry  {Tex.  1905) 
84  S.  W.  1070;  Harrison  v.  Thatcher  (1872)  44  Ga.  638.  However  a  con- 
veyance may  be  had  if  ( 1 )  the  grantor  asks  it  in  the  interest  of  his  creditors, 
Carll  V.  Emery  (1808)  148  Mass.  32;  or  if  (2)  he  conveyed  under  duress, 
Anderson's  Admr's  v.  Merideth  (1885)  82  Ky.  565;  Austin  v.  Wiy^ston  (Va. 
1806)  1  H.  &  M .  32,  3  Am.  Dec.  583;  Bump,  Fraudulent  Conveyances,  2nd  ed. 
442,  the  parties  not  being  in  pari  delicto.  Sanford  v.  Feed  {Ky.  1905)  85 
S.  W.  213;  2  Fomeroy's  Equity  916;  see  also,  Einsdill  v.  White  (1861)  34 
Vt.  558." — 5  Columbia  Law  Review  473. 

For  an  elaborate  note  on  the  principle  of  Massi  v.  Lavine,  see  3  Ameri- 
can St.  Rep.  121  et  seq. 

"One  of  the  most  common  occasions  for  the  enforcement  of  this  rule  arises 
in  cases  where  a  debtor  has  conveyed  or  assigned  or  in  any  manner  trans- 
ferred his  property  for  the  purpose  of  defrauding  his  creditors,  and  after- 
wards seek  to  set  aside  the  transfer  as  against  the  grantee  or  assignee  and 
recover  back  the  property.  The  door  of  a  court  of  equity  is  always  shut 
against  such  a  claimant.  Freeman  v.  Sedwick,  6  Gill,  28,  39,  46  Am.  Dec. 
050;  Stewart  v.  Iglchart,  1  Gill  d  J.  132,  28  A.  M.  Dec.  202;  Bolt  v.  Rogers 
3  Paige,  156;  Stark's  Ex'rs  v.  Littlepage,  4  Rand.  372;  Janey  v.  Bird's  Adm'rSy 
3  Leigh,  570.''     Pomeroy,  Equity  Jurisprudence,  §  401,  n.  2. 


S88  WOLLSTENCROFT  v.  LONG  [part  i. 


E. — Equity  Follows  the  Law. 


TOWNSEND  V.  KILMURREY. 

In  Chancery,  before  Lord  Chancellor  Clarendon. 

[Tothill  121.] 

Fee  simple  land  purchased  by  the  father  and  descended  to  the  son, 
this  land  shall  not  be  assets  in  law  nor  equity  to  pay  debts.' 


WOLLSTENCROFT  v.  LONG. 

In  Chancerv,  before  Lord  Chancellor  Clarendon,  1664.^ 

[3  Reports  in  Chancery  12.]' 

Debtor  upon  Bonds  and  simple  Contract  makes  a  Conveyance  of  Lands 
upon  Trust,  to  sell  for  payment  of  his  Debts,  It  was  declared  to  be  the 
constant  Practice,  and  so  ruled  and  decreed  here,  That  all  the  Debts 
should  be  paid  in  proportion :  And  that  if  the  Lands  were  not  sufficient 
to  pay,  all  the  Creditors  should  lose  in  proportion;  and  so  it  is  where 

*  The  law  of  this  case  has  been  since  changed  by  statute.  See  3  &  4  Will. 
IV.  c.  104;  Woerner  American  Law  of  Administration  §  574. 

"And  if  the  law  helps  him  not  conscience  cannot  help  him  in  this  case,  for 
conscience  must  always  be  grounded  upon  some  law,  and  it  cannot  in  this 
case  be  grounded  upon  the  law  of  reason  nor  upon  the  law  of  God,  for  it  is 


'  As  a  faithful  minister  of  the  Crown  and  as  a  master-hand  in  literature,  the 
good  Earl  stands  well  in  the  first  rank.  As  a  chancellor  his  decisions  have  been 
treated  with  scant  respect.  For  example,  Lord  Kenyon  once  said:  "But  it 
must  not  be  forgotten  that  that  case  was  determined  by  Lord  Chancellor 
Clarendon,  who  after  an  absence  from  courts  of  justice  for  many  years  was 
then  recently  returned  to  this  country  and  had  not  been  for  some  time  in  the 
habits  of  business."  [Milbourn  v.  Ewart  (1703)  5  T.  R.  381,  384.]  And  Lord 
Lyndhurst  said,  in  speaking  of  a  case  before  his  noble  predecessor:  "That,  I 
woukl  remark,  is  the  only  case  wliir-h  is  open  to  the  observation  that  was  made 
at  the  bar  of  its-  being  a  judgment  pronounced  immediatoly  after  the  Restora- 
tion, and  therefore  not  entitled  to  much  weight.  It  was  decided  by  Lord 
Clarendon."     [Partridge  v.  Osborne    (1828)    5  Russ.    195,  248.] 

Lord  Clarendon  had  always  two  Masters  in  Chancery  to  keep  him  right  in 
matters  of  practice,  and  he  never  made  a  decree  without  the  assistance  of  two 
of  tlie  judges.     (3  Campbell,  Lives  of  the  Lord  Chancellors,  Ch..  LXXIX.) 

'  S.  C.  Freeman  175;   1  Cases  in  Ch.  32. 


CHAP.  IV.]  WOLLSTENCKOFT  v.  LONG  289 

Lands  are  given  to  pay  Debts  and  Legacies,  they  shall  be  paid  in  equal 
proportion,  because  the  Land  is  made  liable  to  one  as  well  as  the  other 
by  the  Debtor  himself ;  but  otherwise  it  is  in  Case  of  Debts  on  Judgment, 
that  in  their  own  Nature  charge  the  Lands/ 

not  directly  bye  those  laws  that  a  man  shall  be  tenant  by  the  curtesy,  but 
by  the  custom  of  the  realme.  And  therefore  if  that  custom  help  him  not,  he 
can  nothing  have  in  this  case  by  conscience,  for  conscience  never  resisteth  the 
law  of  man  nor  addeth  nothing  to  it,  but  where  the  law  of  man  is  in  itself 
directly  against  the  law  of  reason  or  els  the  law  of  God,  and  then  properly 
it  cannot  be  called  a  law  but  a  corruption,  or  where  the  generall  groundes  of 
the  law  of  man  worketh  in  a  particular  case  against  the  sayde  laws  as  it 
may  do,  and  yet  the  law  good  as  it  appeareth  in  divers  places  in  our  fyrste 
epalogue  in  latin  or  els,  where  there  is  no  law  of  man  provided  for  him  that 
hath  right  to  a  thynge  by  the  law  of  reason  or  by  the  law  of  God.  And 
then  sometime  there  is  a  remedy  given  to  execute  that  in  conscience,  as  by  a 
Sub  pena  but  not  in  all  cases  for  sometime  it  shalbe  referred  to  the  con- 
science of  the  partie,  and  upon  this  ground  (that  is  to  say)  that  when  there 
is  no  title  given  by  the  common  law,  then  there  is  no  title  by  conscience." 
St.  Germaine,  Doctor  and  Student,  f.  85   (1531). 

^  See  cases  under  the  maxim,  "Equality  is  equity." 

"We  find  that  it  was  held  in  the  Court  of  Chancery,  in  violation  of  the  law 
established  by  legal  decisions,  that  one  executor  and  one  joint  tenant  might 
in  Chancery  sue  his  companion: — that,  although  from  loss  or  other  accident 
an  obligee  could  not  produce  his  bond,  without  which  by  a  positive  rule  of 
law  he  could  have  no  remedy,  yet  he  might  enforce  the  obligation  in  Chan- 
cery:— that  where  the  lessor  entered  on  his  tenant,  and  thus,  by  the  rule  of 
law,  suspended  the  rent,  he  should  have  relief  in  equity.  So  the  Court  of 
Chancery  in  certain  cases  gave  relief  against  forfeitures,  which  had  been 
clearly  incurred  according  to  the  rules  of  law;  the  court  carrying  its  juris- 
diction to  the  extent  of  ordering  restitution  after  judgment  at  law,  and  ex- 
ecution ;  the  court  in  those  cases,  avoiding  to  transgress  the  provisions  of  the 
statutes  before  adverted  to,  by  not  examining  into  the  judgment  itself,  but 
prohibiting  the  party  from  putting  it  in  force;  *  *  *  So  notwithstand- 
ing the  maxim  before  alluded  to,  where  a  remedy  was  provided  by  the  law, 
which  was  held  by  the  common  law  judges  to  be  sufficient,  yet  the  Court  of 
Chancery  in  some  cases  gave  a  more  effectual  remedy  of  its  own  in- 
stead.    *     ♦     * 

Thus  it  appears  that  a  jurisdiction  to  interfere,  in  some  cases  at  least, 
with  the  rules  and  maxims  of  law  on  the  ground  of  equity  and  conscience, 
as  well  as  to  supply  its  defects  was  clearly  exercised." — 1  Spence,  Jurisdiction 
of  the  Court  of  Chancery  409-411. 

"This  consideration  brings  to  my  mind  a  cause  which  happened  in  the 
Court  of  Chancery  very  early  in  my  first  attendance  of  Westminster  Hall  as 
a  student,  which  occasioned  some  mirth  as  well  as  attention.  The  decision 
is  not  reported  in  any  book,  and  my  memory  does  not  serve  me  to  state  all 
the  circumstances  of  it.  In  the  law  of  England  there  is  a  process  called  an 
Audita  Querela,  which  is  a  suit  at  common  law,  whereby  a  defendant  may  be 
relieved  after  and  against  a  judgment  or  execution,  upon  particular  equitable 
circumstances  but  limited   and  bound  by  certain   rules.     A  defendant  in   a 


290  BUXTON  v.  SNEE  [part  i. 

BUXTON  V.  SNEE. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1748. 

[1  Vesey  Senior  154.] 

The  demand  by  the  plaintiff  was  for  work  done  in  repairing  a  ship. 
1  Salk.  34.   1  Stra.  695.   1  Atk.  234.   Douglas,  97.  Cowper,  636. 

The  defendants  were  part  owners,  or  their  representatives,  who   re- 
ceived the  benefit  thereof :  and  notwithstanding  insisted,  that  they  should 
not  make  a  satisfaction. 
Lord  Chancellor. 

This  is  undoubtedly  a  harsh  defence.  (It  has  been  held,  that  where 
a  captain  contracts,  for  the  use  of  the  ship,  credit  is  given  him  in  respect 
of  his  contract:  also  to  the  owners  as  the  contract  is  on  their  account, 
and  the  creditor  has  a  specific  lien  on  the  ship;  also  a  captain  not  per- 
sonally contracting  is  not  answerable  personally  for  the  ship's  neces- 
saries. Per  Lord  Mansfield,  in  Farmer  and  Davies,  Hill.  26  Geo.  3.  B.  R. 
reported  by  Durnford  and  East.  Their  having  received  the  benefit  is 
not  suflScient  to  make  them  liable :  for  the  court  will  not  do  so,  if  the 
court  cannot  come  at  it  by  way  of  contract  or  consequential  equity. 

The  questions  on  this  case  are  two.  First,  whether  the  part-owners 
by  the  employment  of  the  plaintiff,  either  by  the  master  or  the  husband 
are  become  personally  liable  for  the  debt  created,  and  contracted  for  the 
repairs?  The  second,  supposing  they  are  not,  whether  the  ship  itself 
has  contracted  a  lien  by  the  Admiralty  law  allowed  here;  and  then 
whether  the  money  arising  by  the  sale  is  answerable  to  the  plaintiff? 

judgment  had,  by  some  fraudulent  contrivance,  artfully  brought  his  case 
within  some  of  those  rules,  and  sued  his  Andita  Querela:  against  which  the 
plaintiff  in  the  judgment  was  advised  he  could  make  no  defence  at  law,  and 
ln'ought  his  hill  in  Chancery  to  be  relieved  against  the  Audita  Querela.  It 
happened  that  both  my  Lord  Cowper,  then  Lord  Chancellor,  and  the  Master 
of  the  Rolls  were  called  away  upon  public  business,  and  Mr.  Justice  Eyre,  a 
strict  common  lawyer,  who  had  never  practiced  at  all  in  a  Court  of  Equity, 
sat  in  Chancery  that  day,  by  virtue  of  the  standing  commission  to  hear 
causes  in  the  absence  of  the  Chancellor.  The  counsel  for  the  defendant  in 
Chancery,  who  was  plaintiff  in  the  Audita  Querela,  thought  themselves  sure 
of  a  victory,  when  so  extraordinary  a  cause  as  a  bill  in  Chancery,  to  be  relieved 
against  a  common  law  suit  of  Equity,  came  to  be  heard  before  a  comman  law 
judge;  and  the  Counsel  for  the  plaintiff'  were  proportionately  in  despair.  But 
the  .Judge  found  that  the  plaintiff  in  Chancery  had  the  merits  on  his  side; 
and  yet  the  court  of  common  law  must,  by  reason  of  their  general  rules 
established,  have  given  judgment  against  him,  and  therefore  he  decreed  an 
injunction  to  stay  proceedings  in  the  Audita  Querela.  This  decree  was  upon 
a  rehearing  affirmed  by  my  Lord  Cowper,  not  without  some  observation  upon 
the  singularity  of  the  case." — Letter  of  Lord  Hardnicke  to  Lord  Karnes, 
(ITT)!))   J'arkes'  History  of  the  Court  of  Chancery  501,  507. 


CHAP.  IV.]  BUXTON  V.  SNEE  291 

I  will  consider  the  last  question  first,  and  am  of  opinion  that  the 
plaintiff  is  not  intitled  to  follow  the  money  into  the  hands  of  the  de- 
fendants. Certainly  by  the  maritime  law,  the  master  has  power  to  hy- 
pothecate both  ship  and  cargo  for  repairs,  &c.  during  the  voyage ;  which 
arises  from  his  authority  as  master,  and  the  necessity  thereof  during 
the  voyage :  without  which  both  ship  and  cargo  would  perish ;  there- 
fore both  that  and  the  law  of  this  country,  admit  such  a  power.  But 
it  is  different,  where  the  ship  is  in  jjort,  infra  corpus  comitalus,  and 
the  contract  for  repairs,  &c.  made  on  land  in  England;  then  the  rule  of 
that  law  must  i)revail.  I  know  no  case,  where  the  repairs,  &c.  whether 
it  was  by  part-owners  or  sole  owner,  master  or  husbands,  have  been  held 
a  charge  or  lien  on  the  body  of  the  ship.  Watki7ison  v.  Barnardiston, 
2  P.  Wms.  367,  being  a  direct  authority  to  the  contrary;  and  if  the  river 
infra  corpus  comitatus  should  be  proceeded  against  and  stopi^ed  for  such 
debt,  the  courts  of  law  would  issue  a  prohibition ;  the  contract  being 
at  land,  and  not  arising  from  necessity.  See  1  Salk.  34  ace.  If  there- 
fore the  body  of  the  ship  is  not  liable  or  hypothecated,  how  can  the 
money  arising  by  sale  be  effected  or  followed ;  the  one  being  consequen- 
tial of  the  other;  so  that  the  foundation  of  an  equity's  arising  for  the 
plaintiff  fails.  But  it  is  said,  that  sounds  harsh  in  a  court  of  equity ;  for 
even  admitting  there  is  no  lien  on  the  body  of  the  ship,  yet  the  de- 
fendants having  received  the  benefit  should  make  satisfaction ;  but  that 
follows  not  as  an  equitable  consequence ;  for  suppose  the  owner  of  an 
house  lays  out  a  great  sum  of  money  in  repairs;  upon  its  descending  to 
his  heir  at  law  he  cannot  be  affected  with  the  debt  for  these  repairs, 
although  he  receives  the  benefit;  for  though  that  be  the  law  of  Holland, 
that  it  is  a  lien  on  the  house,  it  is  not  so  here :  for  if  whoever  receives 
a  casual  benefit,  should  be  liable  to  make  satisfaction,  it  would  extend  to 
several  cases  where  it  ought  not.  The  demand  then  must  rest  on  the 
first  question :  whether  the  defendants,  or  those  in  whose  place  they 
stand,  are  personally  liable  for  the  debt;  of  which  I  doubt;  but  will 
give  the  plaintiff  all  the  assistance  I  can ;  for  it  is  just,  that  if  he  can 
come  at  it,  he  ought.  Undoubtedly  in  general,  whoever  contracts  with 
another,  as  factor  or  agent  for  a  third  person,  it  will  bind  his  principal; 
(And  see  Cowp.  255.  Bull.  Ki.  Pri.  130.)  and  there  is  an  election,  as  in 
the  case  of  B lac kiv ell- Hall,  and  several  other  factors,  to  being  an  action 
against  either;  and  there  are  several  cases,  where  an  action  may  be 
brought  against  a  principal,  though  not  named  at  the  time  of  the  con- 
tract. As  among  the  Brokers,  who  will  not  be  allowed  as  witnesses  to 
prove  the  contract,  and  that  it  was  made  for  the  principal,  though  they 
were  not  named.  It  is  no  answer  therefore  to  say,  that  the  part  owners 
are  not  named. 

Then  how  far  the  act  of  the  master,  can  create  an  Assumpsit  be- 
tweeen  the  plaintiff  and  the  part-owners.  Had  it  been  in  the  course  of 
the  voyage,  it  would  have  been  another  consideration;  but  here  it  seems 
the  master  did  not  act  as  agent  for  the  part- owners,  but  the  husband's. 


292  WATTS  v.  BALL  [part  r. 

It  is  true  that  is  in  the  answer  under  the  words  heard  and  helieve;  but  not 
being  replied  to,  it  must  be  taken  as  evidence,  because  no  opportunity 
is  given  to  prove  it. 

Then  the  question,  which  is  very  material,  and  in  respect  of  which  I 
am  not  sufficiently  informed  of  the  course  of  trade,  is  upon  the  husband : 
whether  the  part-owners  are  bound  by  the  contract  with  the  husband;  he 
being  general  agent?  Supposing  the  principle  upon  which  the  plaintiff 
goes,  is  true,  the  contract  with  the  husband  is  joint,  and  will  survive. 

The  most  beneficial  thing  then,  that  can  be  done  for  him,  is,  to  direct, 
that  he  be  at  liberty  to  bring  an  action  against  the  survivors :  to  restrain 
the  defendants  from  pleading  the  statute  of  limitations,  or  from  in- 
sisting upon  any  discharge  under  a  commission  of  bankruptcy  against 
one  of  them. 

But  let  the  bill  be  dismissed,  so  far  as  it  seeks  any  relief  against  the 
body  of  the  ship,  or  the  money  arising  by  the  sale  thereof.' 


WATTS  V.  BALL. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1708. 

[1  Pere  Williams  108.] 

The  case  in  effect  was:  one  seised  of  lands  in  fee  had  two  daughters, 
and  devised  his  lands  to  trustees  in  fee,  in  trust  to  pay  his  debts,  and  to 
convey  the  surplus  to  his  daughters  equally. 

The  younger  daughter  married  and  died,  leaving  an  infant  son  and 
her  husband  surviving. 

The  eldest  daughter  brought  a  bill  for  a  partition ;  and  the  only  ques- 
tion was,  whether  the  husband  of  the  younger  daughter  should  have  an 
estate  for  life  conveyed  to  him,  as  tenant  by  the  curtesy? 

The  husband  in  his  answer  had  sworn,  that  he  married  the  younger 
daughter,  upon  a  presumption  that  she  was  seised  in  fee  of  a  legal 
estate  in  the  moiety;  that  at  the  time  of  the  marriage  she  was  in  the 
actual  receipt  of  the  profits  of  such  moiety;  and  it  was  admitted,  that 
this  trust  was  not  discovered,  until  after  the  death  of  the  younger  daugh- 
ter, nor  until  it  was  agreed,  that  a  partition  should  be  made. 

'  "Work  done  for  a  ship  in  England  is  supposed  to  be  on  the  personal  credit 
of  the  employer." — Per  Lord  Mansfield  in  WiUcins  v.  Carmichael  (1779) 
Douglas  97,  101. 

See  notes  to  this  case  in  Belt's  Supplement  to  Vescy  Senior. 

As  to  liability  in  assumpsit  for  necessaries  supplied  to  the  ship,  see  Rich 
v.  Coe   (1777)   2  Cowper  C3G. 


CHAP.  IV.]  HEARD  V.  STANFORD  293 

Decreed  by  Lord  Chancellor,  that  trust  estates  were  to  be  governed 
by  the  same  rules,  and  were  within  the  same  reason,  as  legal  estates;* 
and  as  the  husband  should  have  been  tenant  by  the  curtesy,  had  it  been 
a  legal  estate,  so  should  he  be  of  this  trust-estate ;  and  if  there  were  not 
the  same  rules  of  property  in  all  courts,  all  things  would  be,  as  it  were, 
at  sea,  and  under  the  greatest  incertainty. 

His  lordship  added,  that  this  being  a  case  of  some  difficulty,  he  could 
have  wished  it  had  not  come  before  him  as  a  cause  by  consent;  but  his 
opinion  was,  that  the  husband  ought  to  be  tenant  by  the  curtesy;  and  the 
rather  because  it  appeared  that  he,  upon  his  marriage,  did  conceive  and 
presume  his  wife  to  be  seised  of  a  legal  estate  in  the  moiety,  and  had 
reason  to  think  so,  she  being  in  possession  thereof. 

Wherefore  it  was  decreed,  that  an  estate  for  life  in  a  moiety  in 
severalty,  should  be  conveyed  by  the  trustees  to  the  husband,  with  re- 
mainder in  fee  to  his  son. 

In  this  cause  Mr.  How,  (who  was  for  the  husband)  cited  the  case  of 
Sweetapple  versus  Bindon,  where  money  was  devised  to  be  laid  out,  for 
the  benefit  of  a  feme  sole,  in  the  purchase  of  lands  in  fee;  the  feme 
married  and  had  issue,  and  died,  the  husband  surviving;  and  decreed 
in  equity,  that  tho'  the  money  was  not  invested  in  a  purchase  during 
the  life  of  the  wife,  yet  in  regard,  in  this  case,  if  it  had  been  so  laid  out, 
the  husband  would  have  been  tenant  by  the  curtesy,  and  that  this  was 
as  land  in  equity,  therefore  the  husband  was  equally  intitled. 

And  Mr.  Vernon  told  me,  that  tho'  in  the  case  of  Lady  Radnor  and 
Vandehendy  it  was  decreed  in  equity,  and  affirmed  in  the  house  of  lords, 
that  a  feme  dowress  should  not  have  the  benefit  of  a  trust  term,  where 
the  husband  died  seised  of  the  legal  estate  of  the  freehold,  yet  that  the 
contrary,  on  consideration,  was  decreed  by  Sir  John  Trevor,  Master  of 
the  Rolls,  in  the  case  of  Dudley  versus  Dudley. 


HEARD  V.  STANFORD. 
In  Chancery,  beforp:  Lord  Chancellor  Talbot,  1735.* 

[Forrester  173.]' 

The  Defendant's  Wife,  before  Marriage,  gave  a  Promissory  Note  for 
50  I.  to  the  Plaintiff,  in  Consideration  of  five  Years  Service,  at  the  Rate 
of  10  I.  per  Annum,  and  afterwards  married  the  Defendant,  who  had 
a  Fortune  with  her  to  the  Amount  of  700  I.  Part  whereof  consisted  of 

^  See  the  opinion  of  Lord  INIansfield,  C.  J.,  in  Burgess  t\  Wheate,  supra  56. 
^  There  is  but  one  view  of  the  ability  and  character  of  this  great  and  good 
man.     Of  the  many  tributes  to  him  as  a  chancellor    three    may   be    quoted: 
*S.  C.  3  Peere  Williams  409. 


294  HEAED  v,  STANFOKD  [part  i. 

Things  in  Action,  some  of  which  the  Defendant  received  as  Husband, 
and  the  rest  he  took  as  Administrator  to  his  late  Wife.  The  Bill  was  for 
the  PajTnent  of  this  Note,  upon  Suggestion  of  his  having  received  a 
great  Fortune  with  her,  and  never  having  made  any  Settlement  upon 
her.  The  Defendant  insisted,  That  that  Part  of  his  Wife's  Fortune 
which  was  not  reduced  into  Possession  by  him  during  the  Coverture,  and 
which  he  received  after  her  Death  as  Administrator,  was  not  near  suf- 
ficient to  pay  her  Debts;  and  that  he  had  already  paid  more  than  that 
Part  amounted  to. 

The  Question  was,  WTiether  the  Husband  should  be  liable  in  Equity 
to  the  Payment  of  his  deceased  Wife's  Debts;  and  the  Fortune  he  had 
received  with  her  should  be  looked  upon  as  equitable  Assets?  it  being 
clear,  that  at  Law  he  is  chargeable  only  during  the  Coverture,  and  no 
longer. 

For  the  Plaintiff  was  cited  the  Case  of  Freeman  versus  Goodham, 
1  Chan.  Ca.  295,  where,  upon  a  Bill  brought  against  the  Husband  for  Dis- 
covery of  Goods  bought  by  the  Wife  before  Marriage,  which  after  her 
Death  came  to  his  Hands,  the  Lord  ISi ottingham  said,  he  would  change 
the  Law  in  that  Point.  And  also  that  of  Powell  versus  Bell,  Ahr.  Eq. 
Ca.  60.  pi.  7. 

Lord  Chancellor.  The  Question  is,  Wliether  the  Husband,  as  such, 
be  chargeable  for  a  Debt  of  his  Wife's  after  her  Death  in  a  Court  of 
Equity?  As  on  the  one  hand  the  Husband  is  by  Law  liable  to  all  his 
Wife's  Debts  during  the  Coverture,  although  he  did  not  get  one  Shilling 
Portion  with  her,  and  that  her  Debts  should  amount  to  2000  I.  or  any 
other  Sum  whatever;  so  on  the  other  hand  it  is  as  certain,  that  if  the 

8ir  Lord  Kenyon,  M.  R.,  considered  him  to  be  a  man  of  "Consummate  knowl- 
edge" [Milbourne  v.  Milbourne  (1786)  1  Cox  247,  248];  Chief  Justice  Willes 
termed  him  a  very  great  chancellor  [Crispe  v.  Perritt  (1744)  Willes  467, 
472] ;  while  Sir  John  Bayley  rightly  declared  liim  to  be  "one  of  the  greatest 
real  property  lawyers  that  ever  filled  the  office  of  Lord  Chancellor"  [Doe  dem. 
Lloyd  V.  Passingham  (1827)  6  Born  &  Cr.  305,  315]. 

"No  man  ever  occupied  the  high  position  he  had  attained  with  more  unmixed 
admiration;  nor  did  the  death  of  any  great  judicial  dignitary  ever  cause  so 
much  general  lamentation.  Living  too  short  a  time  to  excite  the  jealousy  of 
his  colleagues  in  the  ministry,  or  to  become  obnoxious  to  the  opposition,  he 
presided  long  enough  in  his  court  to  prove  himself  a  most  efficient  and 
impartial  judge.  His  patience  in  listening  to  arguments,  his  discriminations 
in  sifting  facts,  his  readiness  in  applying  precedents,  and  the  reasons  upon 
which  he  founded  his  judgments,  made  his  decrees  acceptable  to  the  legal 
community,  and  prevented  murmurs  even  among  the  unsuccessful  litigants. 
The  purity  of  his  life,  his  iniblomished  integrity,  his  humanity  to  the  dis- 
tressed, his  liberality  to  all,  his  gentleness  of  manners,  his  \nbanity,  cheerful- 
ness, and  wit,  gained  him  so  many  friends,  and  were  so  universally  recognized, 
that  he  not  only  escaped  the  vituperation  of  political  writers  during  his  life, 
but  both  parties  after  his  death  vied  with  each  other,  both  in  prose  and  verse, 
in  uiKjualificd  encomiums  on  his  character." — Foss,  Lives  of  the  Judges. 


CHAP.  IV.]  HEARD   v.   STANFORD  '295 

Debt  be  not  recovered  during  the  Coverture,  the  Husband  is  no  longer 
chargeable  as  such,  let  the  Fortune  he  received  with  his  Wife  be  never 
so  great.  The  Case  perhaps  may  be  hard,  but  the  Law  hath  made  it  so, 
that  it  may  be  equal  on  both  sides,  as  well  where  the  Husband  is  sued 
during  the  Coverture,  for  a  Debt  of  his  Wife's,  with  whom  he  had  no 
Fortune,  as  where  he  by  her  Death  is  discharged  from  all  her  Debts,  not- 
withstanding any  Fortune  he  may  have  received  in  Marriage  with  her; 
so  is  the  Law,  r.nd  the  Alteration  of  it  is  the  proper  Work  of  the  Legis- 
lature only.  There  are  Instances  indeed  in  which  a  Court  of  Equity 
gives  Remedy  where  the  Law  gives  none;  but  where  a  particular  Remedy 
is  given  by  Law,  and  that  Remedy  bounded  and  circumscribed  by  par- 
ticular Rules,  it  would  be  very  improper  for  this  Court  to  take  it  up 
where  the  Law  leaves  it,  and  extend  it  farther  than  the  Law  allows. 
Besides,  if  Relief  was  to  be  given  in  this  Case,  it  would  be  very  un- 
reasonable not  to  extend  it  to  the  former  Case,  where  the  Hardship  lies 
on  the  Husband,  which  was  never  yet  done.  There  is  a  Case  which  may, 
and  probably  does  happen  very  often,  that  comes  very  near  to  this.  Sup- 
pose Goods  are  sold  for  a  certain  Price  to  a  Person,  who  just  after  the 
Delivery,  and  before  the  Price  paid,  becomes  a  Bankrupt,  and  these  very 
Goods  are  vested  in  the  Assignees;  the  Vendor  can  come  in  but  as  a 
Creditor  for  his  Share;  and  can  neither  pretend  to  have  the  Price  agreed, 
nor  pursue  the  Goods  in  the  Hands  of  the  Assignees ;  and  yet  this  is 
a  Hardship  upon  him,  but  not  such  as  is  relievable  here.  In  the  Case  of 
Freeman  versus  Goodham,  the  Goods  never  came  to  the  Husband's 
Hands  until  after  the  Wife's  Death;  which  made  it  a  very  hard  Case 
upon  the  Creditor,  and  probably  occasioned  the  Saying  of  my  Lord 
Nottingham:  But  even  there  he  only  overruled  a  Demurrer,  put  into  a 
Bill  for  a  Discovery  of  the  Goods;  and  it  does  not  appear  what  became 
afterwards  of  the  Cause.  And  in  that  of  Powell  versus  Bell  the  Wife 
was  Administratrix  of  her  first  Husband,  and  it  did  not  appear  what 
she  had  in  her  own  Right,  and  what  as  Administratrix  of  her  Husband ; 
in  which  Case  the  Marriage  is  no  Gift  in  Law  of  the  Goods  which  she 
hath  in  Auter  Droit:  And  upon  this  Reason  only  are  founded  all  the 
Cases  where  a  surviving  Husband  has  been  charged  with  his  Wife's 
Debts  after  her  Death. 

And  so  decreed  an  Account  of  what  the  Husband  had  received  since 
his  Wife's  Death  as  her  Administrator;  and  that  he  should  be  liable 
for  so  much  only:  But  as  to  any  further  Demand  against  her  dismissed 
the  Bill.' 

^  See  note  3  to  Rees  v.  City  of  Watertown. 

Poineroy,  commenting  on  this  passage,  says,  "It  should  be  observed,  how- 
ever, that  equity  had  not,  in  developing  its  jurisdiction,  invaded  the  partic- 
ular doctrine  of  the  common  law  which  was  involved  in  this  case ;  but  it 
had  certainly  disregarded  other  rules  as  positive  and  well  settled,  in  its 
previous  course  of  decision."  Equity  Jurisprudence  §  425. 

"Thus  in  the  first  place  it  was  said,  that  it  is  the  business  of  a  court  of 


296  COWPER  V.  EAEL  OF  COWPER  [part  i. 

CowPER  V.  Earl  of  Cowper  (1754)  2  Peere  Williams  720,  753.'— Sir 
Joseph  Jekyll,  M.  E. — The  Law  is  clear,  and  Courts  of  Equity  ought  to 
follow  it  in  their  judgments  concerning  titles  to  equitable  estates:  other- 
wise great  uncertainty  and  confusion  would  ensue ;  and  though  proceed- 
ings in  Equity  are  said  to  be  secundum  cUscretvonem  honi  viri,  yet  when 
it  is  asked,  vir  botius  est  quis?  the  answer  is  qui  consultia  patrum  qui 

equity  to  abate  the  rigour  of  the  common  law  [Lord  Karnes,  Principles  of 
Equity  Tom.  1,  p.  41  et  seq.]  But  no  such  power  is  contended  for.  Hard 
wa^  the  case  of  bond-creditors,  whose  debtor  devised  away  his  real  estate: 
rigorous  and  unjust  was  the  rule  which  put  the  devisee  in  a  better  condi- 
tion than  the  heir ;  yet  a  court  of  equity  had  no  power  to  interpose.  Hard 
is  the  common  law  still  subsisting,  that  land  devised,  or  descending  to  the 
heir  shall  not  be  liable  to  simple  contract  debts  of  the  ancestor  or  devisor, 
although  the  money  was  laid  out  in  purchasing  the  very  land;  and  that  the 
father  shall  never  immediately  succeed  as  heir  to  the  real  estate  of  the  son ; 
but  a  court  of  equity  can  give  no  relief;  though  in  both  these  instances  the 
artificial  reason  of  the  law,  arising  from  feudal  principles,  has  long  ago  en- 
tirely ceased.  *  *  *  In  all  such  cases  of  positive  law,  the  courts  of 
equity  as  well  as  the  courts  of  law,  must  say  with  Ulpian,  "hoc  quidem 
perquam  durum  est,  scd  ita  lex  scripta  est." — 3   Black  Com.  430. 

'  "In  this  case,"  says  Pomeroy,  "the  court  reluctantly  adhered  to  the  legal 
canon  of  descent  which  prefers  the  whole  to  the  half  blood,  and  held  that 
an  equitable  estate  in  fee  descended  to  a  cousin  of  the  whole  blood,  instead 
of  to  a  brother  of  the  half  blood  of  the  deceased  owner." — Equity  Jurispru- 
dence §  428,  n.  3. 

"Equitas  seqiiitur  legem.  Wlien  the  court  finds  the  rules  of  law  right,  it 
will  follow  them,  but  then  it  will  likewise  go  beyond.  One  case  of  that  kind 
occurred  to  me  during  the  argument.  The  statutes  of  forcible  entry,  only 
provide  for  removing  the  force;  but  what  says  this  Court,  even  where  a  man 
has  not  a  legal  but  only  an  equitable  estate,  or  be  it  one  or  the  other,  we 
will  here,  not  only  remove  the  force,  but  grant  him  an  injunction,  to  quiet 
the  possession  of  such  an  estate  as  he  had  then,  and  three  years  before." — Per 
Lord  Chancellor  Hardwicke  in  Paget  v.  Gee  (1753)  Amb.  (Blunt's  edition) 
807,  810. 

"It  may  be  said,  that  honi  est  judicis  ampliare  legem.  But  this  maxim  is 
not  to  be  understood  as  that  a  Judge  in  equity  should  alter  the  maxims  of 
the  common  law,  for  this  would  be  to  assume  a  power  paramount  to  the  law. 
The  utmost  that  can  be  meant  by  this  maxim,  if  it  has  any  meaning  in  it, 
is,  that  this  coiirt,  provided  it  has  the  law  to  justify  it,  should  sometimes 
usurp  upon  the  jurisdiction  of  the  courts  at  law.  If  this  court  should  extend 
its  jurisdiction  in  this  point,  it  might  by  a  parity  of  reason  extend  it  in 
other  points,  viz.  determine  how  often  distresses  should  be  taken.  A  collateral 
warranty  was  certainly  one  of  the  hardest  and  most  cruel  points  of  the  com- 
mon law,  because  there  was  not  so  much  as  an  intended  recompence,  yet  I 
do  not  find  that  this  Court  ever  gave  relief  in  it." — Per  Lord  Chancellor  Cow- 
per, Earl  of  Bath  v.  liherwin  (1710)    10  Mod.  1,  3. 

"And  undoubtedly  the  warranty  is  collateral  to  the  title  of  John,  who  claims 
by  purchase,  and  not  from  the  person  who  made  the  warranty;  and  as  this 
was  before  the  Stat.  4  4.  5  2.  Anne,  cap.  16  (how  hard  and  unreasonable  so- 


CHAP.  IV.]  COWPER  V.  EARL  OF  COWPER  297 

leges  juraque  servat;  and  as  it  is  said  in  Rook's  Case,  5  Rep.  99  b.  that 
discretion  is  a  science,  not  to  act  arbitrarily  according  to  men's  wills 
and  private  affections;  so  the  discretion  which  is  executed  here,  is 
to  be  governed  by  the  rules  of  Law  and  Equity,  which  are  not  to  oppose, 
but  each  in  its  turn,  to  be  subservient  to  the  other;  this  discretion  in 
some  cases,  follows  the  law  implicitly,  in  others,  assists  it  and  advances 

ever  it  may  be)  there  is  no  room  for  a  court  of  equity,  which  cannot  alter 
the  law,  to  interpose."  Per  Lord  Chancellor  Talbot  in  Savage  v.  T<iylor 
(1736)    Cases  temp.  Talbot  234,  237. 

"In  approaching  these  questions  there  may  be  propounded  as  postulates 
or  legal  truisms,  admitting  of  no  dispute,  the  following  propositions:  1.  That 
wherever  the  rights  or  the  situation  of  parties  arc  clearly  defined  and  estab- 
lished by  law,  equity  has  no  power  to  change  or  unsettle  those  rights  or 
that  situation,  but  in  all  such  instances  the  maxim  equitas  sequitur  legem  is 
strictly  applicable." — Per  Mr.  "Justice  Daniel  in  Magniac  v.  Thompson  (1853) 
15  How.  281,  299. 

"As  to  the  question,  whether  a  license,  given  to  open  a  shop,  is  to  have  a 
different  operation  here  and  at  law,  it  has  been  long  settled  at  law  ( Dumpor's 
case,  4  Rep.  119),  that,  a  covenant  not  to  assign  without  license,  being  once 
dispensed  with,  the  condition  is  gone;  and  equity  has  followed  that.  ( Brum- 
mell  V.  McPherson,  14  Vcs.  173.)  I  should  not  have  thought  that  a  very  good 
decision  originally;  and,  I  think,  here  we  ought  to  hesitate  to  say,  that,  if  the 
license  is  to  be  in  writing,  a  mere  act,  not  establishing  whether  the  party 
meant  a  license,  general  or  particular,  should  be  taken  to  be  a  general  license; 
admitting,  therefore,  the  application  of  the  doctrine  of  law  in  the  ease  to 
which  I  allude.  (12  Ves.  191;  Brummell  v.  McPherson,  suyra.)  If,  how- 
ever, the  covenant  is  not  to  convert  the  premises  into  a  shop,  or  to  carry  on  a 
trade,  without  a  license  in  writing,  I  cannot  conceive  that  the  permission  of 
the  lessor,  without  writing,  to  carry  on  one  trade,  amounts  to  a  general  license 
for  any  trade;  as  the  good  sense  is,  and,  if  it  is  new,  the  law  ought  to  be, 
that  you  must  infer  from  his  conduct,  that  the  lessor  would  have  given  in  wTit- 
ing  that  sort  of  license,  which  it  would  have  been  prudent  to  give;  and  it 
cannot  be  represented,  that  a  license  to  open  a  shop  for  a  particular  trade 
raises  the  inference,  that  commencing  with  that  trade,  the  lessee  may  after- 
wards carry  on  any  other. 

"In  this  case,  therefore,  I  cannot  from  the  permission  to  carry  on  a  par- 
ticular trade  in  this  shop  conceive  that  the  tenant  may  carry  on  any  other; 
and  a  Court  of  Equity  ought  not  to  enter  into  a  comparison;  and  permit  him 
to  carry  on  some  trades,  as  less  offensive  than  others." — Per  Lord  Chancellor 
Eldox  in  Macher  v.  Foundling  Hospital   (1813)    1  Ves.  &  B.  188,  190-1. 

"It  is  a  well  settled  rule,  that  20  years'  possession  by  the  mortgagee,  without 
account  or  acknowledgment  of  any  subsisting  mortgage,  is  a  bar  to  a  redemp- 
tion, unless  the  mortgagor  can  bring  himself  within  the  proviso  in  the  statute 
of  limitations.  .  .  .  The  analogy  between  the  right  to  redeem  in  this 
court,  and  the  right  of  entry  at  law,  is  presumed  complete  and  entire  through- 
out, so  that  the  mortgagor  who  comes  to  redeem,  after  the  20  years,  must 
show  himself  within  one  of  the  exceptions  that  would  save  his  entry  or  eject- 
ment at  law;  and  he  must,  likewise,  show  that  he  had  filed  his  bill  within  10 
years  after  his  disability  ceased.     The  cases  which  I  have  looked  into  and  to 


298  HEDGES  v.  DIXON  COUNTY  [part  i. 

the  remedy;  in  others  again,  it  relieves  against  the  abuse,  or  allays  the 
rigour  of  it;  but  in  no  case  does  it  contradict  or  overturn  the  grounds 
or  principles  thereof,  as  has  been  sometimes  ignorantly  imputed  to  this 
court.  That  is  a  discretionary  power,  which  neither  this  nor  any  other 
Court,  not  even  the  highest,  acting  in  a  judicial  capacity,  is  by  the  con- 
stitution entrusted  with. 


Hedges  v.  Dixon  County  (1893)  150  U.  S.  182,  192.— Mr.  Justice 
Jackson.  *  *  *  Xhe  principle  running  through  these  decisions 
controls  the  case  under  consideration,  and  clearly  establishes  that  the 
complainants  are  not  entitled  to  the  relief  they  seek.  The  fact  that  the 
complainants  have  no  remedy  at  law,  arising  from  the  invalidity  of  the 
bonds,  confers  no  lurisdiction  upon  a  court  of  equity  to  afford  them 
relief.  The  established  rule,  although  not  of  universal  application,  ia 
that  equity  follows  the  law,  or,  as  stated  in  Magniac  v.  Thompson, 
15  How.  281,  299,  "  that  wherever  the  rights  or  the  situation  of  the  parties 
are  clearly  defined  and  established  by  law,  equity  has  no  power  to  change 
or  unsettle  those  rights  or  that  situation  but  in  all  such  instances  the 
maxim  equitas  sequiiur  legem  is  strictly  applicable." 

Where  a  contract  is  void  at  law  for  want  of  power  to  make  it,  a 
court  of  equity  has  no  jurisdiction  to  enforce  such  contract,  or,  in  the 
absence  of  fraud,  accident,  or  mistake  to  so  modify  it  as  to  make  it  legal 
and  then  enforce  it.  Courts  of  equity  can  no  more  disregard  statutory 
and  constitutional  requirements  and  provisions  than  can  courts  of  law. 
They  are  bound  by  positive  pi'ovisions  of  a  statute  equally  with  courts  of 

which  I  now  refer,  are  uniform  in  support  of  this  just  and  necessary  rule;  and 
the  construction  of  the  statute  is  the  same  here  as  at  law.  The  same  hmita- 
tions  are  adopted,  with  the  allowance  of  the  same  time  tor  disabilities. 
(Jennor  v.  Tracy,  note  to  3  P.  Wm.  287;  Bell  v.  Harvey,  ib.,  and  in  app.  No. 
12  to  Sugden's  Law  of  Vendors,  3rd  edit.  Lord  Kenyon,  in  Bonny  v.  Ridgard, 
cited  in  17  Vesey,  99.  Lord  Camden,  in  3  Bro.  639,  note  Anon  3  Atk.  313. 
Aggar  V.  Pickerell,  3  Atk.  225.  Lord  Rosslyn,  in  Lytton  v.  Lytton,  4  Bro.  458. 
Hodle  V.  Haley,  1  Vosey  &  B.  536.  Reeks  i\  Postlethwaite,  Cooper'*  Eq.  Rep. 
16L  Bairon  v.  Martin,  id.  189.  Moor  v.  Cable,  1  Johns  Ch.  Rep.  385)." 
— Per  Kent,  Chancellor,  in  Demarest  v.  Wynkoop  (1817)  3  Johns  Ch.  129,  135. 
"This  power  of  distress  implies  the  relation  of  landlord  and  tenant,  and 
thcrcfciic  7('iit  wns  meant  in  the  strict  sense  of  the  term;  in  the  event  men- 
tioned in  this  covenant,  the  single  was  to  he  turned  into  a  double  rent.  If 
the  party  thought  that  this  was  the  case  of  a  jjonalty,  wliy  did  lie  not  try 
the  question  at  law?  It  is  altogether  a  mistake  to  suppose  there  is  one  rule 
at  law  and  another  in  equity.  I  am  bound  to  give  this  lease  the  same  con- 
struction which  it  would  receive  in  a  court  of  law.  If  the  party  thousht  this 
a  penalty  he  should  not  have  discontinued  his  action  at  law,  and  <  omc  into 
this  court  for  a  peculiar  construction  of  this  covenant."— Per  Lord  Cliancellor 
J^u-.'den,  in  Cerrard  v.  O'Reilly    (1843)    3  Dr.  &  W.  414,  430. 


CHAP.  IV.]  ANONYMOUS  299 

law,  and  where  the  transaction,  or  the  contract,  is  declared  void  because 
not  in  compliance  with  express  statutory  or  constitutional  provisions,  a 
court  of  equity  cannot  interpose  to  give  validity  to  such  transaction  or 
contract,  or  any  part  thereof.' 


HOVENDEN  v.  ANNESLEY. 

In  the  High  Court  of  Chancery,  Ireland,  before  Lord  Chancellor 

Redesdale,  180G. 

[2  Schoahs  and  Lefroy,  *607.] 

See  the  case  as  printed  on  p.  373,  infra. 


ANONYMOUS. 

1470-71. 

[Year  Bool-,  9  Edward  IV,  placitum  25.] 

In  debt  upon  a  borrowing,  the  defendant  said  that  a  communication 
was  had  between  them  [the  plaintiff  and  the  defendant]  at  the  time 
of  the  borrowing,  that  the  defendant  should  enfeoff  the  plaintiff  of 
certain  land  to  him  and  his  heirs,  and  to  take  the  profits  until  the  de- 
fendant paid  him  that  sum ;  and  he  [the  defendant]  said  that  he  enfeoffed 
him  [the  plaintiff],  ut  supra,  etc.,  by  force  of  which  he  was  seised,  etc.; 
and  this  day  is  seised,  and  has  taken  the  profits,  and  if  the  plaintiff 
will  [re-]enfeoff  him,  he  is,  and  all  time  has  been  ready  to  pay  him,  etc.: 
judgment,  etc.  And  sic,  although  he  has  not  remedy  in  our  law,  he  may 
have  subpoena  if  he  pays  the  money,  etc.     .     .     .^ 

"■Cf.  McCormick  v.  Grogan   (1869)   L.  R.  4  H.  L.  82,  97,  supra. 

"If  one  has  no  writing  [specialty]  and  his  debtor  dies,  there  is  no  remedy 
by  the  common  law,  and  yet  in  equity  the  creditor  shall  have  remedy. — Year 
Book,  7  Hen.  7,  12. 

"If  a  man  is  indebted  without  specialty  and  dies,  his  executor  shall  not  be 
charged  by  the  common  law,  but  in  the  Chancery  by  conscience. — 7  Hen.  7; 
Brooke's  Abridgment,  Conscience,  etc.,  8." — 1  C.  P.  Cooper's  Reports  555. 

"If  one  pays  the  duty  of  a  bond,  and  has  no  writing  [specialty]  to  show  it, 
that  is  good  in  equity,  and  yet  it  is  no  bar  at  common  law. — Year  Book,  7  Hen. 
7,  12."— id.  558. 

^  Printed  as  translated  in  1  C.  P.  Cooper's  Reports  535. 


300  BEAED  v.  NUTTHALL  [part  i. 


F. — Equity  Looks  to  the  Intent  Rather  than  the  Form. 


PICKERING  V.  KEELING  &  PICKERING. 
In  Chancery,  before  Lord  Keeper  Littleton,  1641. 

[1  Reports  in  Chancery,  147.] 

That  Thomas  Pickering,  deceased,  Father  of  the  Defendant  Tho.  Pick- 
ering and  the  Defendant  Thomas  Pickering  by  Deed  16  Jac.  settled 
Lands  to  several  Uses  charged  with  an  Annuity  or  Rent  Charge  of  20  I. 
per  annum  to  be  paid  to  the  Plaintiff;  but  the  Defendant  having  gotten 
seized  of  the  said  Lands,  and  got  the  said  Deed  into  their  Hands  refuse 
to  pay  the  said  Annuity. 

The  Defendants  insist  that  the  said  Deed  is  void  in  Law  by  reason 
of  a  former  Deed  made  12  Jac.  for  valuable  Considerations  whereby 
the  said  Lands  were  conveyed  in  Fee  without  any  Rent  Charge. 

This  Court  upon  reading  the  said  Deed,  the  Plaintiff  not  proving 
that  the  said  Annuity  was  granted  upon  any  valuable  Consideration, 
whereby  this  Court  might  be  induced  to  set  up  and  make  good  the  said 
Deed  in  Equity,  This  Cburt  saw  no  Cause  to  relieve  the  Plaintiff  herein, 
but  dismist  the  Bill. 


BEARD  V.  NUTTHALL. 

In  Chancery,  before  Sir  John  Trevor,  M.  R.,  1686. 

[1  Vernon  427.] 

The  plaintiff's  husband  after  marriage  enters  in  a  voluntary  bond  to 

settle  a  jointure  of  the  value  of on  his  wife,  and  afterwards  settles 

lands  of  that  value  upon  his  wife  in  jointure,  and  thereupon  the  bond 
was  delivered  up  to  be  cancelled.  The  husband  dies,  and  the  jointress 
is  evicted.  The  bill  was  that  the  wife  being  administratrix  of  her 
husband  might  retain  of  her  husband's  personal  estate  against  the  de- 
fendants, who  claimed  a  share  of  the  personal  estate  upon  the  statute 
of  distributions,  to  the  value  of  her  jointure;  there  being  no  creditors 
in  the  case. 

The  court  ordered  that  in  regard  the  plaintiff  was  now  become  entitled 
to  dower,  that  she  should  proceed  at  law  for  recovery  thereof,  and  what 
the  same  should  full  short  in  value  of  the  jointure,  should  be  retained 


CHAP,  rv.]  BUNN  v.  WINTHROP  301 

by  her  out  of  the  personal  estate,  notwithstanding  the  bond  was  after 
marriage  and  voluntary,  and  delivered  up  to  be  cancelled:  for  an 
agreement,  though  voluntary,  under  hand  and  seal,  ought  to  be  decreed 
by  this  court :  and  the  delivery  up  of  the  bond  by  a  feme  covert  could 
no  way  bind  her  interest. 


BOLD  V.  CORBETT. 

In  Chancery,  before  Lord  Chancellor  Somers,  169S. 

[Precedents  in  Chancery  84.] 

<: 

The  Lord  Chancellor  said,  in  this  case  voluntary  conveyances  might  be 
aided  in  a  court  of  equity;  but  where  there  is  no  remedy  at  law,  it  is 
discretionary  in  this  court  to  interfere  or  not. 


BuNN  V.  WiNTHROP  (1815)  1  Johns.  Ch.  329,  336.— The  Chancellor 
[Kent].  *  *  *  Xor  do  I  think  that  the  want  of  some  good  or  valu- 
able consideration  appearing  on  the  face  of  the  deed  ought  to  preclude 
this  court  from  lending  its  assistance.  There  is  no  rule  of  the  court 
against  giving  effect,  as  between  the  parties,  to  a  voluntary  actual  trans- 
fer by  deed,  of  a  personal  or  chattel  interest,  without  any  consideration 
appearing.  The  rule,  I  apprehend,  is  directly  otherwise,  as  to  personal 
property,  whatever  it  may  be  as  to  real  estate.  It  was  said  by  the  Chan- 
cellor, in  Bold  V.  Corhett,  (Prec.  in  Ch.  34,)  to  be  discretionary  in  a 
court  of  equity,  whether  it  would  aid  a  voluntary  conveyance  where  there 
was  no  remedy  at  law;  and  by  looking  into  the  earlier  cases  it  would 
seem  that  there  was  much  floating  and  unsettled  opinion  on  the  question 
how  far  equity  would  help  a  defect  in  a  voluntary  conveyance  of  real 
property,  or  decree  specific  performance  in  the  case  of  a  voluntary 
covenant.  (1  Ch.  Pep.  34.  Wiseman  v.  Roper,  2  P.  Wms.  467,  8. 
Randal  v.  Randal,  2  Vent.  365.  n.  1  Vern.  100,  Yillers  v.  Beaumont.) 
With  respect,  however,  to  chattel  interests,  an  agreement  under  seal  im- 
ports a  consideration  at  law.  In  Beard  v.  Nutthall,  (1  Vern.  427,)  a 
bond,  though  voluntary  and  without  consideration,  was  supported  by 
a  decree;  and  the  Master  of  the  Rolls,  in  3  P.  Wms.  222,  spoke  to  the 
same  effect  as  to  a  voluntary  bond.  But  it  will  be  sufficient,  on  the 
subject  of  aiding  voluntary  agreements,  to  recur  to  the  distinction  de- 
clared by  Lord  Eldon,  in  Ellison  v.  Ellison,  (6  Ves.  662,)  as  being  one 
which  reduces  this  point  to  something  like  established  rule.  If  you  want, 
according  to  that  distinction,  the  assistance  of  chancery  to  raise  an  in- 


302  MTNTUEN  v.  SEYMOUR  [part  i. 

terest  by  way  of  trust,  on  a  covenant,  or  executory  agreement,  you  must 
have  a  valuable  or  meritorious  consideration;  for  the  court  will  not  con- 
stitute you  cestuy  que  trust,  when  you  are  a  mere  volunteer,  and  the 
claim  rests  in  covenant,  as  a  covenant  to  transfer  stock.  But  if  the 
actual  transfer  be  made,  the  equitable  interest  will  be  enforced;  for  the 
transfer  constitutes  the  relation  between  trustee  and  cestuy  que  trust, 
though  voluntary  and  without  consideration.  To  the  same  effect  was  the 
observation  of  Sir  Joseph  JeJcyll,  in  Lechmcre  v.  Earl  of  Carlisle,  (3 
P.  \Yms.  222,)  that  every  cestuy  que  trust,  though  a  volunteer,  and  the 
limitation  without  consideration,  was  entitled  to  the  aid  of  a  court  of 
equity. 

The  deed  in  question,  in  this  case,  was  an  actual  creation  of  the  trust 
and  transfer  of  the  specified  interest ;  and  no  doubt  can  arise  under  the 
above  distinction,  even  independent  of  the  operation  of  the  instrument 
as  a  deed,  that  this  court  ought  to  give  it  effect  and  ^rformance. 

If  it  was  necessary  to  go  further  on  this  point,  I  should  be  induced  to 
say  that  the  facts  appearing  in  the  bill  and  answer  amount  to  proof 
of  a  consideration.  One  of  the  plaintiffs  is  an  infant  and  natural  child 
of  the  grantor ;  and  the  other  is  the  mother  of  the  child,  who  had  re- 
sided in  the  house  of  the  grantor,  having  the  charge  of  his  family  for  as 
much  as  fifteen  years  prior  to  the  date  of  the  instrument,  and  while  the 
grantor  was,  during  that  time,  passing  from  the  age  of  55  to  that  of  70 
years.  It  appears  to  me  that,  under  these  circumstances,  the  grantor,  a 
man  of  very  large  fortune,  was  bound,  in  reason  and  justice,  to  make 
competent  provision  for  the  mother  and  the  child.  Past  seduction  has 
been  held  a  valid  consideration  to  support  a  covenant  for  pecuniary 
reparation;  and  the  innocent  offspring  of  criminal  indulgence  has  a 
claim  to  protection  and  support,  which  courts  of  equity  cannot,  and  do 
not,  disregard.  It  may  be  truly  said,  iVon  obtusa  acleo  gestamus  pectora. 
In  the  cases  of  the  Marchioness  of  Annandale  v.  Harris,  (2  P.  ^Yms. 
432.  3  Bro.  P.  C.  445,)  of  Cray  v.  RooJce,  (Cases  temp.  Talbot,  153,)  and 
of  Cary  v.  Stafford,  (Amb.  520,)  settlements  by  way  of  voluntary  bond, 
covenant,  or  deed,  as  the  pra^mium  pudicitios,  were  established,  and  a 
specific  performance  decreed. 


MiNTURN  V.  Seymour  (1820)  4  Johns.  Ch.  497,  600. — The  Chancellor 
[Kent].  *  *  «  'Jhe  case  is  reduced  to  this  simple  point,  whether 
equity  will  enforce  a  mere  voluntary  agreement,  not  valid  in  law,  and 
especially  in  destruction  of  a  legal  claim,  and  recovery  for  a  just  debt. 
A  voluntary  deed  may  be  aided  in  special  cases,  as  was  mentioned  in 
Bunn  v.  Winthrop,  (1  Johns.  Ch.  Rep.  329.)  but  it  is  a  clear,  general 
rule,  that  a  bill  docs  not  lie  to  enforce  a  mere  voluntary  agreement. 
The  language  of  the  books,  from  the  earliest  to  the  latest  cases,  is  uni- 
form in  support  of  the  doctrine,  that  a  voluntary  defective  conveyance,. 


CHAP.  IV.]  JEFFERYS  v.  JEFFERYS  303 

which  cannot  operate  at  law,  is  not  helped  in  equity,  in  favour  of  a 
volunteer,  where  there  is  no  consideration,  nor  any  accident  or  fraud 
in  the  case.  To  entitle  the  party  to  the  aid  of  this  Court,  the  instrument 
must  be  supported  by  a  valuable  consideration,  or,  at  least,  by  what  a 
Court  of  equity  considers  a  meritorious  consideration,  as  payment  of 
debts,  or  making  provision  for  a  wife  or  child.  (Pickering  v.  Keeling, 
1  Rep.  in  Ch.  78.  Thompson  v.  A  tt  field,  1  Vern.  40.  Long  dale  v.  Long- 
dale,  1  Vern.  456.  Colman  v.  Sarel,  3  Bra.  12.  1  Ves.  Jun.  50.  and  see 
also,  1  Fonl.  339.  s.  2.  and  1  Haddock's  Ch.  Rep.  564.)  ' 


JEFFERY'S  V.  JEFFERYS. 

In  Chancery,  before  Lord  Chancellor  Cottenham,  1841.'' 

[Craig  &  Phillips  139.] 

John  Jefferys  executed  certain  indentures  of  lease  and  release  by 
which,  in  consideration  of  the  natural  love  and  affection  he  had  for  them, 
he  conveyed  to  his  three  daughters  certain  freeholds,  and  covenanted  to 
surrender  certain  copyhold  estates  in  trust  for  their  benefit.     He  after- 

^  Where  there  is  no  actual  fraudulent  intent,  and  a  voluntary  conveyance  is 
made  to  a  child  in  consideration  of  love  and  aflfection,  if  the  grantor  is  in 
prosperous  circumstances,  unembarrassed,  and  not  considerably  indebted,  and 
the  gift  is  a  reasonable  provision  for  the  child  according  to  his  state  and 
condition  in  life,  comprehending  but  a  small  portion  of  his  estate,  leaving 
ample  funds  imincuml)ered  for  the  payment  of  the  grantor's  debts;  then  such 
conveyance  will  be  valid  against  conveyances  existing  at  the  time.  But  thouyh 
there  be  no  fraudulent  intent,  yet  if  the  grantor  was  considerably  indebted 
and  embarrassed  at  the  time,  and  on  the  eve  of  bankruptcy;  or  if  the  value 
of  the  gift  be  unreasonable,  considering  the  condition  in  life  of  the  grantor, 
disproportioned  to  his  property,  and  leaving  a  scality  provision  for  the  pay- 
ment of  his  debts ;  then  such  conveyance  will  be  void  as  to  creditors." — Per 
Swift,  Ch.  J.,  in  Salmon  v.  Benett  (1816)  1  Conn.  525,  547;  s.  c.  with  notes 
in  1   Bare  and  Wallace  American  Leading  Cases  32. 

"  "Cottenham  was  a  steady  and  consistent  Whig,  a  sound  lawyer,  and  an  ex- 
ceedingly able  judge.  His  judgments,  which  were  more  remarkable  for  their 
sound  sense  than  for  any  subtle  reasoning,  were  clear,  businesslike,  and  free 
from  affectation  or  display.  Brougham  declared  that  his  appointment  of 
Pepys  to  the  mastership  of  the  rolls  was  his  'own  best  title  to  the  gratitude 
of  the  profession'  (Life  and  Times  of  Lord  Brougham,  1871,  III.,  442).  'His 
skill  in  deciding  cases,'  says  Campbell,  'arises  from  a  very  vigorous  under- 
standing, unwearied  industry  in  professional  plodding,  and  a  complete  mastery 
over  all  the  existing  practice,  and  all  the  existing  doctrines  of  the  Court  of 
Chancery.     He  considers  the  system  which  he  has  to  administer  as  the  perfec- 


304  CLENCH  v.  WITHEELY  [part  r. 

wards  devised  part  of  these  same  estates  to  his  widow,  who,  after  his 
death  was  admitted  to  some  of  the  copyholds.  The  daughters  now  seek 
to  have  the  trusts  of  the  settlement  carried  into  effect,  and  to  compel  the 
widow  to  surrender  the  copyholds  to  which  she  had  been  admitted.' 

The  Lord  Chancellor  [Cottenham].  The  title  of  the  Plaintiffs  to 
the  freehold  is  complete;  and  they  may  have  a  decree  for  carrying  the 
settlement  into  effect  so  far  as  the  freeholds  are  concerned.  With  re- 
spect to  the  copyholds,  I  have  no  doubt  that  the  Court  will  not  execute 
a  voluntary  contract;  and  my  impression  is  that  the  principle  of  the 
Court  to  withhold  its  assistance  from  a  volunteer  applies  equally, 
whether  he  seeks  to  have  the  benefit  of  a  contract,  a  covenant,  or  a 
settlement.  As,  however,  the  decision  in  Ellis  v.  Nimmo  is  entitled  to 
the  highest  consideration,  I  will  not  dispose  of  this  case  absolutely,  with- 
out looking  at  a  former  case  (Dillon  v.  Coppin,  mentioned  supra),  in 
which  I  had  occasion  to  refer  to  that  decision.  Unless  I  alter  the  opinion 
I  have  expressed,  the  bill  must  be  dismissed,  with  costs,  so  far  as  the 
copyholds  are  concerned. 

Feb.  1.  On  this  day  his  Lordship  said  he  had  looked  at  the  case 
alluded  to,  and  that  he  saw  no  reason  for  altering  the  opinion  he  had 
before  expressed." 


CLENCH  V.  WITHERLY. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1678. 

[Reports  Temp.  Finch  376.] 

Sir  Miles  Hohert  being  seised  of  several  Copyhold  Lands,  held  of  the 
Manor  of  Blofeild  Thorp  near  Norwich  and  Upton,  did  about  December 
16G1,  in  Consideration  of  100  Z.  which  he  borrowed  of  Edmund  Witherly, 
late  the  Husband  of  the  Defendant  Dorothy,  and  for  securing  the  Re- 
payment thereof,  surrendered  the  said  Copyholds  to  the  said  Edmund 
Witherly  and  his  Heirs  without  any  manner  of  Condition  therein  ex- 
pressed;  and  as  a  farther  Security,  he  gave  the  said  Witherly  a  Judg- 
ment for  200  I. 

But  by  a  Note  in  Writing,  under  the  Hands  of  the  said  Sir  Miles 
li chert  and  Edmund  Witherly,  dated  in  November  before,  it  was  agreed, 
that  if  Sir  Miles  should  in  January  1662,  pay  unto  the  said  Edmund 

tion  ot  human  wisdom.  Phlegmatic  in  everything  else,  here  he  shows  a  eon- 
siderable  degree  of  enthusiasm'  (Life  of  Lord  Chancellor  Campbell,  II.,  207). 
He  was  neither  an  eloquent  orator  nor  a  great  advocate."  (Dictionary  of  Nat. 
Biography,    article,    Pepys,    C.    C.) 

'  Tlii^  IS  an  abridged  statement  of  the  facts. 

'"I  sliiill  now  state,  by  way  of  illustration,  some  of  the  most  important 
instanroH  in   wliich   tlio  j)rin(ii)lp   [equity  looks  at  the  intent  rather  than  to 


CHAP.  IV.]  CLENCH  V.  WITIIERLY  305 

100  /.  and  all  such  Money  as  he  should  disburse  for  Fines  for  his  Ad- 
mittance and  otherwise,  <&c.  then  the  said  Edmintd  should  surrender  back 
the  said  Copyhold  to  him  and  his  Heirs,  and  then  also  acknowledge 
Satisfaction  on  the  said  Judgment  for  200  /. 

form]  has  l)oon  applied,  and  the  settled  doctrines  of  equity  jurisprudence 
wliicli  are  its  immediate  results.  The  first,  and  by  far  the  most  important 
consequence  of  the  principle,  reaching  through  a  large  part  of  the  equity 
jurisprudence,  is  found  in  every  species  of  equitable  property,  estate,  or 
interest,  and  of  equitable  lion,  so  far  as  these  exist  by  the  doctrines  of  equity, 
but  not  by  those  of  the  law.  While,  as  is  shown  by  the  last  section,  all  these 
purely  etjuitable  projierty  interests  and  liens  arise  from  the  direct  operation 
of  the  grand  ])rinciple,  equity  treats  that  as  done  which  in  good  conscience 
oiifjht  to  be  done,  still  this  maxim  could  only  produce  such  effects  in  conse- 
quence of  tlie  otiier  principle,  that  equity  looks  at  the  intent  rather  than  at 
the  form.  In  every  kind  of  equitable  property,  or  interest  analogous  to  prop- 
erty, the  external  acts  or  events  peremptorily  required  by  the  law  in  order  to 
the  existence  of  any  property  are  wholly  wanting;  so  that  if  the  external  form 
of  the  transaction  had  been  regarded,  no  property,  nor  right  resembling  prop- 
erty, could  possibly  exist.  It  is  by  disregarding  these  forms  and  looking 
at  the  real  relations  involved  in  the  act  of  the  parties,  at  the  real  sub- 
stance and  intent  of  the  transaction,  the  court  of  chancery  ha.s  built  up 
its  magnificent  structure  of  equitable  property,  estates,  and  proprietary 
interests.  The  same  is  true  of  a  large  part  of  equitable  liens.  The  external 
form  is  either  an  assignment,  which  at  law  is  wholly  nugatory,  or  an 
executory  agreement,  which  at  law  only  creates  a  mere  personal  right  of 
action, — at  most  a  claim  for  damages;  but  equity,  going  below  this  mere 
appearance,  and  seeing  the  real  intent,  gives  effect  thereto  by  treating  the 
assionment  or  agreement  as  creating  a  definite  lien  upon  specific  lands,  or 
chattels,  or  securities,  or  other  kind  of  fund,  as  the  case  may  be."  The  same 
author  enumerates  penalties  and  forfeitures,  the  redemption  of  mortgages, 
and  "the  doctrine  which  generally  treats  as  joint  and  several  the  rights  and 
liabilities  arising  from  contracts  which  are  regarded  by  the  law  as  strictly 
joint,"  as  being  derived  from  and  controlled  by  this  maxim. — Pomeroy  1 
Equity  Jurisprudence   §    380. 

The  maxim  is  stated  by  Francis,  "Equity  regards  not  the  circumstance 
but  the  subject  of  the  act."  He  has  collected  the  early  cases  under  this 
heading. — Maxims  5.S.' 

'"It  [this  maxim]  is  tlie  parent  of  the  equitable  doctrine  of  mcrfjcr,  of  the 
doctrine  of  penalties  and  forfeHures,  of  the  equity  of  redemption,  and  of  the 
doctrines  relaxing  the  rigor  and  effect  of  the  seal,  in  cases  of  accident,  mis- 
take, or  fraud.  It  is  also  of  controlling  efficacy  in  the  doctrine  of  trusts,  of 
specific  performance,  of  conversion,  of  subrogation,  of  assignment,  and  a 
variety  of  otiiers.  It  is  by  force  of  this  maxim  that  the  rule  holds  good  which 
forbids  that  being  done  indirectly  which  cannot  be  done  directly.  Rules  of 
interpretation  for  discovering  the  intent  of  statutes,  wills,  and  contracts, 
tacitly  refer  to  this  maxim  as  their  basis. 

"One  of  the  most  salutary  applications  of  this  maxim  is  in  relaxing  tlie 
technicality  of  equity  pleading;  and  it  has  been  the  root  of  important  legisla- 
tive law  reforms."— Phelps,  Juridical  Equity  §  87. 


306  SIR  SIMEON   STEWART'S   CASE  [fakt  j. 

Edmund  Witherly  was  admitted  accordingly,  and  afterwards  he  sur- 
rendered the  Premisses  to  the  Use  of  his  Will,  and  thereby  devised  Part 
thereof  to  Dorothy  his  Wife,  and  left  the  other  Part  to  descend  to  hia 
Son  Thomas  Witherly  the  Infant. 

Since  which  Time,  several  Estates  have  been  carved  out  of  the  Prem- 
isses by  the  said  Dorothy,  after  the  Death  of  her  Husband  Edmund 
Witherly,  to  several  Persons,  and  she  and  her  Son  Thomas  pretend  they 
have  an  absolute  Estate  therein. 

But  it  appearing  to  the  Court,  that  the  said  Surrender  and  Judg- 
ment were  only  Securities  for  the  Repayment  of  the  said  100  /.  lent  by 
the  aforesaid  Edm.  Witherly,  the  Plaintiffs  have  entitled  themselves 
to  a  Redemption;  and  the  same  was  decreed  accordingly,  and  that  the 
Defendants  account,  &c. 


SIR  SIMEON  STEW^ ART'S  CASE. 

In  Chancery, 

[2  Schoales  &  Lefroy  381.]' 

The  late  Sir  Simeon  Stewart  being  embarrassed  in  his  affairs,  made 
a  conveyance  to  the  late  Lord  Delaware,  Sir  H.  Tichborne,  and  others, 
in  trust,  for  the  payment  of  his  debts.  Previous  to  executing  that 
conveyance,  a  gentleman  of  the  name  of  Willis  had  been  prevailed  on 
by  Sir  Simeon  Stewart  to  lend  him  a  large  sum  of  money;  and  Sir 
Simeon  wrote  him  a  letter,  in  which  he  stated  that  he  would  make  a 
mortgage  to  him  on  some  part  of  his  Hampshire  estate;  and  the  ques- 
tion was,  whether  that  was  a  contract  which  bound  the  trustees,  who 
were  trustees  for  general  creditors.  The  creditors  insisted  they  were 
purchasers  for  valuable  consideration,  without  notice  of  this  contract. 
The  fact  of  notice  could  not  be  brought  home  to  the  creditors;  but  it 
was  sufficiently  established  that  the  persons  who  prepared  the  trust 
deeds,  and  were  therefore  the  agents  of  the  creditors  and  the  trustees, 
in  that  transaction,  had  full  notice;  and  therefore  the  only  question  was, 
whethor  1his  bound  the  estate  in  the  hands  of  trustees,  as  being  an 
equity  affecting  Sir  Simeon  Stewart,  prior  to  his  conveyance;  for  if  it 
bound  him  the  consequence  would  be  that  it  bound  his  trustees,  under 

'  Thf  fjiso  as  printed  is  merely  Lord  Cliancellor  Redesdale's  statement  of 
it  in  his  opinion  in  Card  v.  Jaffrny  (180,'j)  2  ^ch.  &  Lcf.  374,  .^Sl.  He 
prefaced  his  statement  by  the  remark  "The  ease  of  Sir  Simeon  Stewart,  which 
has  Ix-en  mentioned,  T  remember  tlie  more  particularly  beeause  it  was  a 
family  I  was  well  acquainted  with,  and  my  brother  was  one  of  the  trustees.'* 


CHAP.  IV.]  WAYT  V.  CAKWITHEN  307 

the  circumstances  of  that  deed.    The  court  did  determine  that  the  letter 
was  sufficient  to  bind  liiin. 


Wayt  v.  Carwitiien.  (18S3)  21  W.  Va.  516,  520.— Sxyder,  J.— 
*  *  *  A  mortgage,  or  trust  deed,  which  cannot  be  enforced  by  a 
sale  under  the  power  or  by  a  judgment  of  foreclosure,  on  account  of 
some  informality  requisite  to  a  complete  instrument,  will  nevertheless 
be  regax'ded  as  an  equitable  mortgage,  and  ihe  lien  will  be  enforced  by 
proceedings  in  equity.  The  attempt  to  create  a  security  in  legal  form 
upon  specific  property  having  failed,  effect  is  given  to  the  intention  of 
the  parties,  and  the  lien  enforced  as  an  equitable  mortgage.  Any  agree- 
ment between  the  parties  in  interest  that  shows  an  intention  to  create 
a  lien  may  be  in  equity  a  mortgage.  Daggett  v.  Ranliin,  31  Cal.  321.  As 
stated  by  Judge  Story,  ''If  a  transaction  resolves  itself  into  a  security, 
whatever  may  be  its  form,  and  whatever  name  the  parties  may  choose 
to  give  it,  it  is  in  equity  a  mortgage."  Flagg  v.  Mann,  2  Sum.  486,  533. 
Effect  has  been  given  upon  this  principle  to  an  instrument  given  by  the 
maker  of  two  notes  to  his  sureties,  the  notes  reciting  that  they  were 
for  the  purchase  of  land  and  providing  that  in  case  the  maker  should 
fail  to  pay  them,  binding  him  to  convey  the  said  land  to  his  said  sureties. 
This  was  held,  upon  the  failure  of  the  maker  to  pay  the  notes,  to  be  a 
mortgage  in  favor  of  the  sureties.  Courtney  v.  Scott,  Litt.  Sel.  Cas. 
457;  Lyon  v.  Lyon,  67  N.  Y.  250.  So  an  agreement  on  the  back  of  a 
note,  making  it  a  charge  upon  particular  land,  is  an  equitable  mortgage. 
In  this  way  an  agreement  intended  to  operate  as  a  revival  of  a  mortgage 
note,  which  had  been  paid,  may  be  rendered  effectual  as  an  equitable 
mortgage,  although  ineffectual  to  revive  the  mortgage  lien.  Peckham  v. 
Haddock,  36  111.  38.  And  so  an  agreement  in  a  lease,  that  the  lessor  '"is 
to  have  a  lien"  upon  certain  property  for  the  faithful  performance  of 
the  lessee's  obligation  to  pay  rent,  is  in  effect  a  mortgage.  Whiting  v. 
Eichelberger,  16  Iowa  422.     See  1  Jones  on  Mortg.  §§  162  to  171. 

From  these  authorities  I  conclude  that  any  deed  or  written  contract 
used  by  the  parties  for  the  purpose  of  pledging  real  property,  or  some 
interest  therein,  as  security  for  a  debt  or  obligation,  which  is  informal 
and  insufficient  as  a  common  law  mortgage,  but  which  by  its  terms  shows 
that  the  parties  intended  that  it  should  operate  as  a  lien  or  charge  upon 
specific  property,  will  constitute  an  equitable  mortgage  and  may  be  en- 
forced in  a  court  of  equity. 


308  ATKINSON  v.  MILLER  [part.  i. 

ATKINSON  V.  MILLER. 

In  the  Supreme  Court  of  Appeals  of  West  Virgixia,  1890. 

[34  West  Virginia  115.]' 

Branxox,  Judge: 

This  suit  in  equity  was  brought  in  the  Circuit  Court  of  Jefferson 
county  by  George  W.  and  Fannie  B.  Atkinson  for  themselves  and  all 
other  lien-creditors  of  Robert  M.  Miller  against  said  Miller,  to  en- 
force the  liens  of  a  judgment  in  favor  of  George  W.  Atkinson  and 
a  judgment  in  favor  of  Fannie  B.  Atkinson  against  Miller,  both 
rendered  November  30,  1888,  by  a  sale  of  his  real  estate  for  the 
payment  of  said  judgment  and  other  liens  mentioned  in  the  bill. 
Upon  a  reference  to  a  commissioner  to  covene  all  lienors  and  ascertain 
their  liens,  a  report  was  made  ascertaining  certain  liens  upon  Miller's 
land,  among  them  said  Atkinson  judgments,  and  denying  any  place  as 
a  lien  to  a  debt  of  James  Logic  claimed  bydiim  before  said  commissioner 
under  a  writing  purporting  to  be  a  deed  of  trust  executed  by  Miller  to 
Robert  M.  Duke,  trustee,  to  secure  said  Logic's  debt,  dated  September 
20,  1867,  and  recorded  October  16,  1867,  because  of  the  absence  of  a  seal 
to  said  writing.  Logie  excepted  to  the  report,  because  it  failed  to  report 
said  debt  as  a  first  lien  on  the  real  estate  specified  in  said  deed  of  trust. 
The  court  sustained  Logic's  exception,  and  in  its  decree  made  Logic's 
debt  a  first  lien,  and  thus  gave  it  priority  over  the  Atkinson  judgments 
as  to  said  land  embraced  in  said  trust;  and  said  Atkinsons  have  taken 
this  appeal.  It  thus  involves  a  contest  between  Atkinson's  judgment, 
and  the  Logie  debt. 

This  case  presents  the  question  whether  a  writing  purporting  to  be 
a  deed  of  trust,  formal  in  all  respects  save  the  want  of  a  seal,  creates 
a  lien  on  the  land  mentioned  in  it.  Suppose  a  deed  for  a  fee  were  ex- 
ecuted without  a  seal.  It  would  not  pass  the  legal  estate ;  for  our  statute 
provides  that  no  estate  in  land,  greater  than  a  term  of  five  years,  shall 
pass  except  by  deed  or  will.  Code  1887,  c.  71,  s.  1.  But  a  court  of  equity 
wovdd  not  allow  the  intent  of  the  parties,  as  manifested  by  the  writing, 
to  be  wholly  defeated  by  the  omission  of  a  seal,  but  would  treat  the 
instrument  as  a  contract  or  agreement  to  convey,  or  a  memorandum  of 
such  an  agreement ;  and  properly  so,  for  he  who  executes  an  Instrument 
using  proper  words  of  actual  present  conveyance,  but  which,  for  want 
of  a  seal,  fails  to  do  what  the  words  were  meant  to  do,  as  fully  discloses 
a  willingness  and  intent  to  convey,  as  if  he  executed  an  executory  con- 
tract covenanting  to  convey  in  future.  Accordingly,  defective  deeds 
signed  by  the  parties,  purporting  to  convey  the  legal  title,  but  because 
of  some  defect  not  doing  so,  are  treated  in  equity  as  agreements  to  con- 

'  S.  C.  1 1  Southeastern  Reports  1007. 


CHAP.  IV.]  ATKINSON  v.  MILLER  309 

vey;  and  specific  execution  of  them  will  be  decreed  by  providing  for 
the  execution  of  a  formal  and  effectual  conveyance.  1  Hill.  Vend.  118; 
Opinion  in  \Vhite  v.  Deninan,  in  extract  given  below.  Opinions  in 
Goodsoii  V.  Jhacham  24  (}a.  154;  McWiiliams  v.  Nisley,  2  Serg.  (k  H. 
515;  Chew  V.  Barnett,  11  Serg.  &  R.  391. 

If  such  is  the  law  as  to  a  defective  deed  purporting  to  convey  in  fee, 
why  not  an  instrument  purporting  to  be  a  deed  conveying  in  trust  on 
like  principles  to  be  deemed  a  cortract  for  a  conveyance — that  is  for  a 
conveyance  in  trust  for  a  debt?  The  only  difference  is  that  the  one  is 
a  conveyance  absolutely,  the  other  in  trust  to  secure  a  debt.  1  suppose 
an  instrument  conveying  to  A.,  to  be  held  in  trust  for  B.,  could,  if  de- 
fective and  not  operating  to  convey  the  legal  estate,  be  treated  as  evi- 
dence of  an  agreement  to  convey,  which  would  be  specifically  executed. 
The  only  difference  between  the  instruments  is  that  one  is  in  trust  for 
the  purpose  of  paying  a  debt,  the  other  in  trust  for  another  purpose. 
In  other  woi'ds,  in  all  these  cases  the  defective  instrument  is  treated 
as  written  evidence  of  the  fact  that  the  party  did  make  an  oral  agree- 
ment to  convey,  and  that  is  just  what  the  statute  requires — written  evi- 
dence of  the  fact  that  a  contract  to  convey  was  made.  It  is  a  formal 
memorandum  of  the  agreement  under  the  statute.  In  the  face  of  such 
an  instrument  it  coidd  not  be  said  there  was  no  contract  to  convey.' 

Let  us  now  advert  to  another  view  of  the  effect  of  said  deed 
of  trust.  Suppose  that  it  is  not  a  recordable  paper  under  the  statute; 
then  the  statute  does  not  avoid  it  for  want  of  recordation,  for, 
of  course,  the  statute  avoids  only  such  writings  as  it  requires  to  be 
recorded.  Therefore  it  is  to  be  governed  by  the  law,  regardless  of  the 
statute.  What  character  does  it  assume  in  this  view?  Certainly  that 
of  an  equitable  mortgage,  under  very  many  authorities.  "Wherever 
it  appears,  by  writing  signed  by  the  party  to  be  charged,  that,  for  a 
valuable  consideration,  such  as  an  existing  debt,  a  debt  at  that  time 
first  contracted,  or  otherwise,  he  intends  to  charge  his  property  as  se- 
curity for  money,  whatever  the  form  of  the  instrument,  the  court  of 
equity  will  fully  effectuate  the  intention  of  the  parties  concerned.  Hence 
mere  promises,  powers  of  attorney,  deeds  imperfectly  executed,  and 
other  written  papers  have  been  held  to  create  equitable  mortgages  in. 
the  contemplation  of  courts  of  equity.  College  v.  Poivell,  12  Gratt,  387; 
Riiffners  v.  Putney,  Id.  551;  Bussel  v.  Russel,  1  White  &  T.  Lead.  Cas. 
Eq.  674."  2  Minor,  Inst.  297. 

"A  mortgage  or  trust-deed  which  cannot  be  enforced  by  a  sale  under 
the  power  or  by  judgment  of  foreclosure,  on  account  of  some  infor- 
mality requisite  to  a  complete  mortgage  or  deed  of  trust,  will  neverthe- 
less be  regarded  as  an  equitable  mortgage,  and  the  lien  will  be  enforced 
by  special  proceedings  in  equity.     The  attempt  to  create  a  security  in 

^  Parts  of  the  opinion  dealing  with  the  effect  on  the  instrument  of  the 
recording  statute  and  with  the  question  of  a  purchaser  for  value  without 
notice,  has  been  omitted. 


310  DAVIE  V.  BEAEDSHAW  [part  i. 

legal  form,  upon  specified  property,  having  failed,  effect  is  given  to  the 
intention  of  the  parties,  and  the  lien  enforced  as  an  equitable  mortgage." 
1  Jones,  Mortg.  §  1G8. 

In  Wayt  v.  Carwilhen,  21  W.  Va.  516,  it  is  held,  that  any  deed  or 
written  contract  used  by  the  parties  for  pledging  real  property  as  se- 
curity for  a  debt,  which  is  informal  and  insufficient  as  a  common-law 
mortgage,  but  which  shows  that  the  parties  intended  that  it  should  op- 
erate as  a  lien  or  charge  on  the  property,  will  be  an  equitable  mortgage 
and  enforced  in  equity.  See  also,  Knott  v.  Manufacturing  Co.,  30  W. 
Ya.  790  (5  S.  E.  Eep.  266) ;  Fidelity  etc.  Co.  v.  Shenandoah  R.  Co.,  33 
W.  Va.  761  (11  S.  E.  Rep.  58.) 

This  instrument  being  an  equitable  mortgage,  and  (let  us  suppose) 
not  a  recordable  writing,  and  therefore  not  declared  void  as  to  creditors 
and  purchasers  by  it,  when  tested  by  the  general  law  regardless  of  the 
statute,  what  would  be  its  status?  It  would  be  valid  against  creditors, 
though  perhaps  void  as  to  subsequent  purchasers  for  valuable  considera- 
tion without  notice. 

It  follows,  therefore,  that  this  defective  deed  of  trust  as  an  equitable 
mortgage  being  prior  in  time  to  the  judgments  of  the  appellants,  takes 
precedence  over  them,  though  it  might,  in  this  latter  view,  be  subordinate 
to  deeds  of  trust.  And  so,  whether  we  view  this  deed  of  trust  as  a 
contract  for  a  conveyance  recordable  under  the  statute,  which  we  hold 
it  to  be,  or  as  an  equitable  mortgage  recordable  under  the  statute,  or 
as  an  equitable  mortgage  not  recordable  under  the  statute,  it  is  to  be 
preferred  to  the  judgments  of  the  appellants,  and  on  both  grounds  their 
appeal  is  not  well  taken.    Therefore,  we  affirm  the  decree. 

Affirmed. 


G. — Equity  Regards  that  as  Done  which  Ought  to  be  Done. 


DAVIE  V.  BEARDSHAW. 

In  Chancery,  before  Lord  Chancellor  Clarendon,  1664. 

[1  Cases  in  Chancery  39.] 

Davio  agrees  for  the  purchase  of  certain  copyhold  lands,  wliich  were 
surrendered  out  of  court  for  his  use;  but  before  admittance  he  dies, 
having  other  copyholds,  and  having  made  his  will  after  the  said  con- 
tract, and  thereby  devised  to  the  plaintiff,  (who  was  then  and  at  his 
death  his  visible  heir)  all  his  copyholds  after  his  death;  his  wife  being 
priviment  enseint  at  his  death,  is  delivered  of  the  defendant's  wife,  who 


cu.w.  IV.]  FREDERICK  i'.  FREDERICK  311 

then  becomes  the  heir  of  the  devisor.  The  plaintiff  taking  it  for  granted 
that  the  copyholds  so  contracted  for,  did  not  pass  by  the  will,  suffered 
the  heir  to  be  admitted  thereunto,  and  held  the  same  of  the  heir  for 
twenty  years,  and  paid  her  rent  for  that  time,  and  had  agreed  so  to  do 
as  long  as  he  should  hold  them.  Afterwards  differences  arising  be- 
tween the  heir  and  him  about  other  matters,  the  plaintiff  exhibited  his 
bill  (inter  alia)  to  have  those  copyhold  lands  decreed  him.  And  it  was 
declared  upon  the  hearing  by  the  court,  that  it  was  clear  the  said  copy- 
liolds  so  agreed  for  did  pass  by  the  will  to  the  plaintiff,  for  that  the 
purchaser  had  an  equity  to  recover  the  land,  and  the  vendor  stood 
trusted  for  the  purchaser,  and  as  he  shovdd  appoint,  till  a  conveyance  ex- 
ecuted. And  the  case  of  the  lady  Fohaine,  about  1657,  was  cited, 
where  it  was  ruled,  that  if  upon  articles  for  a  purchase,  the  purchaser 
dieth.  and  deviseth  the  land  before  the  conveyance  executed,  the  land 
passeth  in  equity.  But  in  the  principal  case,  inasmuch  as  the  plaintiff 
had  admitted  the  title  to  be  in  the  heir,  and  paid  her  rent,  and  agreed 
so  to  do,  the  court  would  not  decree  it;  but  declared,  if  the  plaintiff 
had  come  in  time,  it  was  proper  to  be  decreed. 


FREDERICK  v.  FREDERICK. 

In  Chancery,  before  Lord  Chancellor  Macclesfield,  1719.' 

[1  Peere  Williams  710.] 

The  bill  was  brought  by  Leonora  Frederick,  widow,  for  the  perform- 
ance of  her  marriage  agreement. 

The  court  of  aldermen  of  London  agreed  upon  the  following: 
*'  That  when  any  person  not  free  of  the  city  should  address  themselves 
to  the  court  for  a  license  to  marry  any  orphan  of  the  city,  that  they 
should  first  be  required  and  urged  by  the  Court  to  take  up  their  freedom, 
before  the  court  would  give  consent  to  such  marriage." 

The  complainant  was  an  orphan  of  the  city.  To  secure  the  sanction 
of  the  city  to  their  marriage,  her  husband  had,  before  marriage,  agreed 
with  the  aldermen  to  take  up  his  freedom.  The  husband  never  became  a 
freeman.  In  his  later  years,  he  became  completely  estranged  from  his 
wife  and  most  of  his  children.     At  his  death  a  will  was  found  in  which 

'  "Macclesfield  was  an  able  jiulge  both  at  common  law  and  in  equity.  Though 
his  fame  as  a  common  law  chief  is  not  quite  equal  to  that  of  his  immediate 
predecessor,  Sir  John  Holt,  his  authority  upon  all  points,  whether  of  a  practical 
or  obstruse  nature,  is  now  as  high  as  that  of  Nottingham,  Somers  or  Hard- 
wicke.  Campbell,  Lives  of  the  Lord  Chancellors  vi.  11,  22." — Dictionary 
Biography,  Article,  Parker. 


312  FREDERICK  v.  FREDERICK  [part  i. 

he  bequeathed  £1000  to  each  of  his  five  children,  £10  to  his  wife,  the  bulk 
of  his  estate  going  to  the  grandchildren  of  his  second  son.  By  the  cus- 
tom of  London,  the  widow  of  a  freeman  was  entitled  to  one  third  her 
husband's  personal  property  on  his  death.' 

His  widow  now  brought  her  bill,  insisting  that  her  husband  having 
made  the  agreement  ut  supra,  for  a  valuable  consideration,  {viz.)  that  of 
marriage,  and  to  induce  the  court  of  aldermen  to  consent  to  his  mar- 
rying the  orphan,  he  ought  to  be  taken  as  a  freeman,  and  in  consequence 
thereof,  his  personal  estate  to  be  distributed  as  such,  {viz.)  the  widow  to 
have  one  third,  his  children  another  third,  and  only  the  remaining  third 
to  pass  by  the  will. 

The  Lord  Chancellor ,  after  debate  of  this  case  at  the  bar,  took  time  to 
consider  of  it;  and  this  day  (being  the  25th  of  August  1721,)  decreied 
the  personal  estate  of  Mr.  Frederich  to  be  liable  to  the  custom  of  London, 
and  that  he  should  be  taken  as  a  freeman  of  London,  he  having  for  a 
valuable  consideration  agreed  to  become  such. 

The  demand  is  grounded  upon  this  rule,  that  where  one  for  a  valuable 
consideration  agrees  to  do  a  thing,  such  executory  contract  is  to  be  taken 
as  done;  and  that  the  man  who  made  the  agreement  shall  not  be  in  a 
better  case,  than  if  he  had  fairly  and  honestly  performed  what  he  agreed 
to.  This  is  to  be  taken  as  a  contract  made  by  the  court  of  aldermen 
with  Mr.  Frederick  himself;  and  now  the  question  is,  whether  he  shall 
by  will  give  away  his  personal  estate,  contrary  to  his  own  agreement? 
When  Mr.  Frederick  engaged  to  take  upon  himself  the  freedom  of  the 
city,  it  was  the  same  as  if  he  had  agreed  that  the  personal  estate  which  he 
might  die  possessed  of,  should  go  according  to  the  custom  of  the  city  of 
London,  one  third  to  his  widow,  and  another  third  to  his  children.^ 

Object.  Mr.  Frederick's  death  alters  the  case;  for  he  cannot  be  made 
a  freeman  after  his  death;  and  so  the  act  of  God  makes  it  impossible 
that  this  agreement  should  be  specifically  performed. 

Resp.  It  is  the  substance  and  the  chief  end  of  the  argument,  that 
equity  will  enforce,  viz.  that  the  widow  and  children  should  have  their 
thirds  of  the  personal  estate,  which  is  not  impossible  to  be  performed. 
This,  though  Mr.  Frederick  be  dead,  a  court  of  equity  may,  and  I  think, 
ought  to  see  executed.  Mr.  Frederick's  unkind  usage  of  his  wife  and. 
children  (it  appearing  by  the  proofs  that  never  had  a  man  a  more  dutiful 
wife  and  children,  nor  ever  a  wife  or  children  a  more  unkind  husband  or 
father,  and  not  one  witness  being  examined  on  the  other  side)  plainly 
entitles  them  to  the  compassion  of  the  court,  as  does  the  extreme  severity 
of  the  will,  and  the  very  narrow  provision  made  for  them  thereby,  'Tis 
farther  observable,  that  by  the  articles  of  separation  between  Mr. 
Frederick  and  his  wife  and  children,  they  were  not  to  come  within  so 
many  yards  of  his  house,  under  certain  penalties;  and  therefore  cannot 
be  blamed  for  going  from  the  testator  in  his  life-time,  and  in  his  old  age, 

'  This  statement  of  facts  is  abridged. 

*  A  considcral)Ie  [)art  of  tlic  opinion  is  omitted. 


CHAP.  IV.]  GREEN  v.  SMITH  313 

without  his  leave,  and  against  his  consent,  when,  by  those  articles,  they 
were  not  to  come  within  so  many  yards  of  his  house  without  a  for- 
feiture. 

Upon  the  whole  matter,  Mr.  Frederich  having  upon  good  consideration 
made  the  agreement  to  become  a  freeman  of  London  within  a  year, 
and  having  survived  that  year,  he  shall  in  equity  be  taken  for  a  freeman, 
and  his  personal  estate  distributed  accordingly,  viz.  one  third  to  the  wife 
another  third  to  the  children,  and  the  will  to  operate  only  on  the  dead 
man's  third ;  the  wife  to  have  the  benefit  of  her  chamber  and  parapher- 
nalia, but  the  legacies  given  by  the  will  to  the  children  to  be  void,  they 
not  being  given  out  of  the  dead  man's  part,  but  out  of  the  whole  personal 
estate,  and  so  to  be  void,  unless  the  children  relea^^e  their  right  to  the  rest 
of  the  estate,  and  abide  by  the  will. 

This  decree  was  afterwards  affirmed  in  the  house  of  lords  with  200  I. 
costs. 


GREEN  V.  SMITH. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1738. 

[1  Athyns  572.] 

A.  articles  for  the  purchase  of  lands,  and  dies;  it  happened  afterwards 
that  the  seller  could  not  make  a  good  title  to  the  lands,  and  the  question 
was  between  the  heir  at  law,  and  the  executor  of  A.  Whether  the  pur- 
chase money  was  to  be  considered  as  land  or  personal  estate  ? 
Lord  Chancellor,  in  this  cause,  laid  down  the  following  rules: 
That  agreements  to  be  performed,  are  often  considered  as  performed: 
for  if  a  man  covenants  to  lay  out  a  sum  of  money  in  the  purchase  of 
lands,  generally,  and  devises  his  real  estate  before  he  has  made  such 
purchase,  the  money  agreed  to  be  laid  out  will  pass  to  the  devisee.' 

'  "Nothing  was  better  established  than  this  principle,  that  money  to  be 
directed  to  be  employed  in  the  purchase  of  land,  and  the  land  directed  to  be 
sold  and  turned  into  money,  are  to  be  considered  as  that  species  of  property 
into  which  they  are  to  be  directed  to  be  converted;  and  this  in  whatever  man- 
ner the  direction  is  given;  whether  by  will,  by  way  of  contract,  marriage 
articles,  settlement,  or  otherwise,  and  whether  the  money  is  actually  deposited 
or  only  covenanted  to  be  paid,  whether  the  land  is  actually  conveyed  or  only 
agieed  to  be  convewd.  The  owner  of  the  fund  or  the  contracting  parties 
may  make  land  money,  or  money  land.  The  cases  establish  this  rule 
universally."  Per  Sir  Thomas  Sewall,  M.R.,  in  Fletcher  v.  Ashburncr  (1779)  1 
Bra.  Ch.  497,  499;  -Sf.  C.  1,  pt.  2,  White  &  Tudor's  Leading  Cases  in  Equity, 
4th  Am.  ed.  1118. 

"Concerning  money  set  apart  for  such  expenditure  it  is  said:  'It  is  land: 
it  will  pass  by  the  words  'messuages,  lands,  tenements  and  hereditaments:' 


314  GKEEN  v.  SMITH  [part  i. 

That  where  a  man  having  made  his  will,  afterwards  enters  into  a  con- 
tract for  the  purchase  of  land,  the  hinds  contracted  for  will  not  pass 
by  the  will,  but  descend  to  the  heir  at  law. 

•  That  where  an  ancestor,  after  the  making  of  a  will,  agrees  for  the  pur- 
chase of  particular  lands,  the  heir  at  law  would  have  a  right  to  them, 
provided  a  good  title  can  be  made,  otherwise  if  it  cannot ;  but  it  is  going 
too  far  to  say  that  though  the  heir  at  law  cannot  have  the  land,  yet  he 
shall  have  the  money  so  intended  to  be  laid  out. 

That  if  a  man  gives  a  portion  to  his  daughter  by  a  will,  and  afterwards 
advances  her  with  the  like  sum,  it  shall  go  in  ademption  of  the  legacy. 

That  the  vendor  of  the  estate  is,  from  the  time  of  his  contract,  con- 
sidered as  a  trustee  for  the  purchaser,  and  the  vendee  as  to  the  money,  a 
trustee  for  the  vendor. 

That  in  bills  for  specifick  performance,  this  court  never  gives  relief 
where  the  act  is  impossible  to  be  done,  but  leaves  the  party  to  his  remedy 
at   law. 

the  heir  at  law  would  be  entitled  to  the  whole."  Per  Lord  Chancellor  Eldon, 
Green  v.  Stephens  (1810)    17  Ves.  G4,  77. 

The  same  rule  governs  in  contracts  giving  an  option.  In  Laices  v.  Bennet 
(1785)  1  Cox  Ch.  166,  the  facts  and  ruling  were  as  follows:  "A  person  named 
\Yhitrong,  in  1758,  demised  to  Douglas  for  seven  years,  with  a  covenant,  that 
if,  after  the  29th  of  September,  1765,  Douglas  should  choose  to  purchase  the 
inheritance  for  3000  I.  Whitrong  would  convey  accordingly.  Whitrong  died 
in  1761 ;  no  election  having  been  made  by  Douglas;  and  left  all  his  real  estate 
to  the  defendant  Bennet,  and  all  his  personal  estate  to  Bennet  and  his  sister, 
equally  as  tenants  in  common.  In  1765,  before  the  29th  of  September,  Waller, 
who  had  piu-ehased  the  lease  and  the  benefit  of  the  agreement  from  Douglas, 
called  upon  Bennet,  the  devisee  of  the  real  estate,  to  convey  upon  payment 
of  3000  I.  The  bill  was  filed  in  1781,  by  Lawes,  the  husband  of  Bennet's  sister, 
against  the  personal  representative  of  Bennet  the  brother,  claiming  a  moiety 
of  3000  I.  and  interest,  and  Lord  Kenyon  made  the  decree  accordingly,  observ- 
ing, that  though  Whitrong  could  not  have  compelled  Douglas  to  purchase, 
the  money  was,  at  the  time  of  the  election,  declared  to  be  considered  as  the 
personal  estate  of  the  testator,  and  did  not  belong  to  the  devisee  of 
the  real  estate."  [Statement  from  Townley  v.  Bedwell  (1808)  14  Ves.  591.] 
Lord  Kenyon  said:  "When  the  party  who  has  the  power  of  making  the 
election  has  elected,  the  whole  is  to  be  referred  back  to  the  original  agree- 
ment, and  the  only  difference  is  that  the  real  estate  is  converted  into  personal 
at  a  future  time." 

"The  settled  doctrine  of  the  courts  of  equity  correspond  witli  this  obvious 
construction  of  wills,  as  well  as  of  other  instriunents,  whereby  land  is  directed 
to  be  turned  into  money,  or  money  into  land,  for  the  benefit  of  those  for 
whose  use  the  conversion  is  intended  to  be  made.  [The  court  then  quoted 
the  passage  from  Fletcher  v.  Ashburrier,  supra,  and  proceeded.]  This  declara- 
tion is  well  warranted  by  the  cases  to  which  the  master  of  the  rolls  refers, 
as  well  as  by  many  others.  (See  Dougherty  v.  Bull,  2  P.  Tl'/zis.  320.  Ycates  v. 
Cowplon,  id.  358.  Trclrtwney  v.  Borth,  2  Atk.  307.) 

In  Craig  v.  Leslie  (1818)  3  Wheat.  563,  577,  Mr.  Justice  Washington  said: 


€iiAP.  n\]  SCUDAMOEE  v.  SCUDAMORE  315 

That  where  an  ancestor  has  agreed  for  the  purchase  of  particuhir 
lands,  but  dies  before  it  is  quite  completed,  if  the  heir  at  law  brings  his 
bill  against  the  devisees,  who  claim  the  real  estate  of  the  ancestor  by 
a  will  made  before  the  purchase  of  those  particular  lands,  the  vendor  of 
these  lands,  where  he  has  a  doubtful  title,  must  be  made  a  defendant  to 
the  suit,  otherwise  if  his  title  be  clear. 


SouDAMORE  V.  ScuDAMORE  (1720)  Prec.  in  Ch.  543,  544, — Note;  In 
this  case  it  was  agreed  by  my  Lord  Chancellor  [Macclesfield]  to  be 
a  declared  rule  in  this  court,  that  if  money  be  devised  to  be  laid  out  in 
the  purchase  of  lands,  to  be  settled  on  one  and  his  heirs,  that  the  per- 
son himself,  for  whose  benefit  the  purchase  was  to  be  made,  may  come 
into  this  court,  and  pray  to  have  the  money  itself,  and  that  no  purchase 
may  be  made,  because  none  have  an  interest  in  it  but  himself;  but  if  he 
dies  before  the  purchase  made,  or  payment  of  the  money,  so  that  the 
question  comes  between  his  heirs  and  executors,  which  of  them  shall 
have  the  money,  the  heir  shall  be  preferred,  and  it  shall  for  his  benefit 
be  considered  in  a  court  of  equity,  as  if  the  purchase  had  been  actually 
made  in  the  life  of  his  ancestor,  for  two  reasons:  1st,  Because  the  heir 
is  to  be  favoured  in  all  cases,  rather  than  the  executors,  who  by  the  old 
law  were  to  have  nothing  to  their  own  use.  2dly,  If  the  executor  should 
have  it,  it  would  be  against  the  words  of  the  will,  which  gave  it  to  the 
heir. 

"The  principle  upon  which  the  whole  of  this  doctrine  is  founded  is  that  a 
court  of  equity  regarding  the  substance,  and  not  the  mere  forms  and  circum- 
stances of  agi-eements  and  other  instruments,  cons'  lers  things  directed  or 
agreed  to  be  done,  as  having  been  actually  performed,  where  nothing  has  in- 
tervened which  ought  to  prevent  a  performance.  This  qualification  of  a  more 
precise  and  general  rule,  that  equity  considers  that  to  be  done  which  is  agreed 
to  be  done,  will  comprehend  the  cases  which  come  under  this  head  of  equity." 

"It  must  be  allowed  equity  follows  the  contracts  of  parties,  in  order  to 
preserve  their  intent,  by  carrying  it  into  execution,  and  depends  on  this  prin- 
ciple, that  what  has  been  agreed  to  be  done  for  a  valuable  consideration  is 
considered  as  done,  and  holds  in  every  case  except  in  dower ;  and  therefore 
where  it  is  to  be  laid  out  in  land,  there  the  court  will  make  it  have  the  prop- 
erty of  land;  the  same  rule  of  lands  to  be  converted  into  money." — Per  Lord 
Hardioicke  in  Crabtree  v.  bramble  (1747)   3  Atk.  680,  687. 

"But  equity  will  not  thus  consider  things  in  favor  of  all  persons,  but  only 
in  favor  of  such  as  have  a  right  to  pray  that  the  acts  might  be  done.  And 
the  rule  itself  is  not  in  other  respects  of  universal  application ;  although' 
Lord  Hardwicke  said  that  it  holds  in  every  case  except  in  dower.  ♦  *  • 
There  are  exceptions  to  the  doctrine  where  other  equitable  considerations 
intervene,  or  where  the  intent  of  the  party  leads  the  other  way;  but  these 
demonstrate,  rather  than  shake,  the  potency  of  the  general  rule." — f!tory  1 
Equity  Jurisprudence  §  64  g. 

See,  for  an  elaborate  discussion  of  the  doctrine  of  conversion,  2  Spence 
Jurisdiction  of  Court  of  Chancery  251,    {Pt.  3,  h.  1,  c.  6,  §  4). 


316  BURGESS  v.  WHEATE  [part  i. 

Burgess  v.  Wheate  (1759)  1  Eden  Ch.  177,  186.— Per  Sir  Thomas 
Clarke,  M.  R.' — First:  The  claims  of  the  phuntiff  Burgess  as  heir-at-law 
ex  parte  materna,  in  default  of  an  heir  ex  parte  paterna.  This  claim  I 
see  no  ground  for,  considering  the  certificate  of  the  judges,  which  Lord 
Eeeper  proposes  to  confirm. 

The  questions  stated  for  B.  R.  have  left  the  point  open  for  the  ma- 
ternal heir,  if  there  was  any  ground  of  right,  and  their  answers  have 
effectually  precluded  him,  in  case  he  has  no  equity.  And  what  ground 
of  equity  has  he? 

What  has  been  insisted  on  is  mere  matter  of  law,  and  would  open  the 
questions  again  which  are  concluded.  For,  by  the  deed  of  1718,  it  is 
held  he  took  nothing;  that  the  trustee  thereby  took  the  legal  estate,  and 
no  new  use  was  created  by  Mrs.  Harding. 

The  only  thing  suggested  by  that  side,  which  has  the  colour  of  equity, 
is,  that  Mrs.  Harding  might  have  prayed  and  compelled  a  conveyance 
from  the  trustee  whilst  she  lived,  by  which  she  would  have  been  seized 
to  new  uses;  which,  in  default  of  heirs  ex  parte  paterna,  would  have 
gone  to  the  heirs  on  the  part  of  the  mother :  and  that  is  a  rule  of  equity. 
"That  what  ought  to  be  done,  or  is  agreed  to  be  done,  is  looked  upon 
as   done."" 

Had  such  a  conveyance  been  executed,  it  would  have  been  like  a 
feoffment  and  re-feoffment,  and  have  made  her  seized  of  a  new  use;  but, 
as  it  was  not  done,  the  consequences  insisted  on  will  riot  follow;  for 
nothing  is  looked  upon  in  equity  as  done,  but  what  ought  to  have  been 
done,  not  what  might  have  been  done.  xSor  will  equity  consider  things 
in  that  light  in  favour  of  every  body ;  but  only  of  those  who  had  a  right 
to  pray  it  might  be  done.  The  rule  is,  that  it  shall  be  either  between 
the  parties  who  stipulate  what  is  to  be  done,  or  those  who  stand  in  their 

^  For  statement  of  facts,  see  case  as  reported,  supra. 

"Speaking  of  the  reversal  in  Kettleby  r.  Atwood  (1684)  1  Vcrn.  2fl8  by 
Lord  Jefferies,  in  1  Tern.  471  (1687),  Lord  Chancellor  Thurlow  said:  "The 
first  doubt  arose  and  the  reversal  proceeded  upon  the  cant  expression,  that 
in  equity  what  is  to  be  done  is  to  be  considered  as  done:  either  that  idea 
should  have  been  fully  carried  out,  or  it  should  have  been  abandoned.  I 
think  it  should  have  been  the  latter." — Pultcney  v.  Darlington  (1783)  1  Bro. 
Ch.  22.3,  237. 

"But  the  covenant  to  convey  is,  in  equity,  equivalent  to  a  conveyance,  and 
I  do  nf)t  apprehend  that,  for  the  present  piu'pose,  it  makes  any  difference 
whether  tlie  lands  are  directly  conveyed  to  trustees  for  sale,  or  covenanted  to 
be  conveyed  to  them  for  that  purpose.  That  which  is  f  '>venanted  to  be  done  is 
considered  as  done." — Per  Sir  William  Grant,  M.  R.,  in  Stead  v.  'Neivdigate 
(1817)   2  Meriv.  521,  530. 

"Whatever  is  agreed  to  be  done  is  considered  in  equity  as  done.  It  follows, 
from  this  principle,  that  a  contract  for  the  sale  of  real  estate  is  considered, 
in  equity,  as  a  conversion  of  land  into  money.  The  vendor's  interest  ceases  to 
be  real  estate.  It  becomes  a  chose  in  action,  a  personal  demand  for  the  con- 
sideration-money, which,  in  case  of  death,  goes  to  his  personal  representatives. 


CHAP.  IV.]  BUSH  V.  BOUTELLE  317 

place.  Here  Mrs.  Harding  never  prayed  a  conveyance,  and  one  can- 
not tell  whether  she  ever  would;  and  the  maternal  heir  is  not  to  be  con- 
sidered as  a  privy  in  blood,  but  a  mere  stranger. 

This  very  cause  warrants  the  distinction  here  taken,  i.  e.  with  regard 
to  the  mill,  &c.  mentioned  in  the  opinion  on  the  last  question.  It  stands 
thus:  Nicholas  nar(]ing,  after  having  agreed  to  release  to  Chandler  the 
equity  of  redemption  of  a  moiety  of  the  mortgaged  premises,  agrees  to 
purchase  of  Chandler  the  mill,  &c.  and  makes  Chandler  stipulate  to 
convey  these  premises  to  him  and  his  heirs,  or  such  person  as  he  shall 
direct.  The  equity  of  redemption  was  released,  and  then  Chandler  stip- 
ulates to  convey  to  Harding  and  his  wife,  and  the  survivor  of  them,  and 
the  heirs  of  the  survivor;  the  consequence  is,  that  Mrs.  Harding  takes 
this  estate,  not  as  the  old  use,  but  by  purchase,  under  the  appointment 
of  her  husband,  which  enlarges  the  course  of  descent  beyond  that  of 
the  old  use.  And  since  what  is  covenanted  to  be  done  is  considered  done, 
the  mill  goes  in  a  course  of  descent  (in  fault  of  paternal  heirs)  to  the 
heir  ex  parte  materna.  In  the  deed  of  1718  there  is  nothing  like  such 
a  covenant,  nor  any  thing  which  shews  she  intended  to  enlarge  the  course 
of  descent.  Wherefore  under  these  circumstances,  as  the  opinion  of  the 
judges  is  proposed  to  be  confirmed,  I  think  there  is  ground  for  the  claim 
of  the  maternal  heir. 


BUSH  V.  BOUTELLE. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1892. 

[156  Massachusetis  1G7.] 

MoRTOX,  J.  The  question  in  this  case  is  whether  the  deeds  from  Cyrus 
E.  Boutelle  to  the  defendant  were  given  in  contravention  of  the  insolvent 
law. 

It  is  stated  in  the  agreed  facts,  that  at  the  time  the  defendant  took 
them,  and  when  the  loan  was  made  for  which  they  were  given  to  him  as 
security,  Cyrus  was  insolvent  and  knew  himself  to  be  so,  and  the  defend- 

and  the  legal  title  is  held  only  as  a  security  for  the  payment  of  the  debt.  The 
vendee  becomes  in  substance  the  owner  of  the  estate.  In  his  hands  it  is  sub- 
ject to  dower  curtesy,  and  to  all  the  incidents  of  real  estate;  and  upon  his 
death  it  goes  to  his  heirs  and  not  to  his  personal  representatives.  This  con- 
version takes  place  notwithstanding  that  it  may  afterwards  be  defeated  by 
the  non-payment  of  the  purchase-money.  Even  when  the  conversion  is 
subject  to  the  happening  of  a  contingency,  the  property  will  be  taken  to  be 
as  of  the  nature  it  was  intended  to  be  upon  the  happening  of  the  coniingeney: 
Lawes  v.  Bennett,  1  Cox  Ca.  Ch.  167;  Leigh  &  Dalzell  on  Equit.  Conversion 
19."— -Per  Lewis,  J.,  in  Long^vell  v.  Bentley  (1854)  23  Pa.  St.  99,  102. 


318  BUSH  V.  BOUTELLE  [part  i. 

ant  had  reason  to  believe  him  to  be  so.  It  is  not  stated  that  the  deeds 
were  taken  or  that  the  money  was  advanced  by  the  defendant  with  a 
view  to  enable  Cyrus  to  prefer  the  bank,  or  to  evade  in  any  way  the  in- 
solvent law.  That  is  denied  in  the  defendant's  answer.  We  understand 
the  question,  therefore,  to  be  whether,  on  the  agreed  facts  as  thy  stand, 
without  anything  more,  the  deeds  as  matter  of  law  were  in  contra- 
vention of  the  insolvent  law. 

It  appears  that  Cyrus  had  a  note  coming  due  at  a  bank  in  Fitchburg. 
The  day  before  it  fell  due  the  indorsee  declined  to  renew  it.  Cyrus 
thereupon  applied  to  the  defendant,  saying  that  the  action  of  the  in- 
dorsee put  him  in  a  tight  place,  and  asking  the  defendant  to  get  the 
money  for  him  on  his  (Cyrus's)  note,  and  saying  he  would  give  the  de- 
fendant security  on  two  lots,  naming  them,  either  by  mortgage  or 
warranty  deed.  Instead  of  getting  the  money  in  the  manner  Cyrus  sug- 
gested, the  defendant  himself  advanced  the  money  and  kept  the  note, 
which  was  dated  April  10,  1889.  Owing  to  his  absence  at  Worcester  as  a 
witness,  and  by  reason  of  other  pressing  business,  Cyrus  was  unable  to 
complete  the  transaction  till  April  23,  when  he  made  and  delivered  as 
security  to  the  defendant  warranty  deeds  of  the  two  lots. 

The  petitioner  contends  that  the  arrangement  between  the  defendant 
and  Cyrus  contemplated  the  giving  of  security  at  a  future  time,  and  not 
as  a  part  of  or  contemporaneous  with  the  lending  of  the  money,  and  that 
when  the  defendant  received  the  deeds  he  took  them  as  an  unsecured 
creditor  receiving  security  for  an  unsecured  debt.  We  do  not  think  the 
transaction  can  be  so  regarded. 

The  proposal  to  give  security  was  made  at  the  same  time  as  and  as  a 
part  of  the  request  for  the  loan.  It  was  made  before  the  money  was  lent, 
to  induce  the  lending  of  it,  and  the  money  was  lent,  for  aught  that  appears, 
in  good  faith  on  the  promise  of  the  security.  The  only  reasonable  con- 
struction to  be  given  to  the  letter  of  Cyrus  is  that  it  was  expected  and  in- 
tended by  the  parties  that  the  lending  of  the  money  and  the  giving  of 
the  security  would  be  contemporaneous,  and  that  Cyrus  understood  that 
he  was  to  give,  and  the  defendant  that  he  was  to  receive,  present  security 
for  a  present  loan.  The  accidental  delay  could  not  affect  the  real  char- 
acter of  the  agreement,  or  what  was  done.  The  situation  of  the  debtor 
remained  unchanged,  and  there  is  nothing  to  show  that  the  delay  was  for 
the  purpose  of  giving  credit.  When  the  security  was  given,  equity  vi^ould 
treat  it — on  the  principle  that  a  thing  is  considered  done  at  the  time 
when  it  ought  to  have  been  done — as  if  it  had  been  given  at  the  time 
agreed,  and  at  law  possibly  the  interval  might  be  disregarded,  and  the 
agreement  and  the  giving  of  the  deed  be  regarded  as  contemporaneous. 
Gardiner  v.  Gerrish,  23  Maine,  46.  1  Story,  Eq.  Jur.  §  649.  Nickerson 
v.  Baker,  5  Allen,  142.  Hawks  v.  Locke,  139  Mass.  205.  Commonwealth 
v.  Devlin,  141  Mass.  423,  431.  Cartwright  v.  Wilmerding,  24  N.  Y.  521, 
533,   534. 

The  cases  relied  on  by  the  petitioner  on  this  branch  of  the  case  are 


CHAP.  IV.]  BUSH  V.  BOUTELLE  319 

readily  distinguishable  from  this  case.  In  Blodgett  v.  Hildreth,  11  Cush. 
311,  the  agreement  to  give  security  was  clearly  executory,  and  at  the  time 
the  security  was  given  there  was  clearly  an  antecedent  debt.  In  Forbes 
V.  Howe,  102  Mass.  427,  a  former  mortgage  was  surrendered  and  a  new 
one  was  taken  on  other  property  to  secure  a  debt  that  had  existed  some 
time.  The  second  mortgage  was  clearly  invalid.  The  same  is  in  sub- 
stance true  of  Simpson  v.  Carlelon,  1  Allen,  109.  Holmes  v.  Wijichester^ 
135  Mass.  299,  is  the  strongest  case  cited  by  the  petitioner,  but  the  con- 
veyance which  was  the  subject  of  controversy  was  not  made  till  two 
years  and  four  months  after  the  time  when  it  should  have  been  made. 
The  court  expressly  said  that  the  evidence  was  "  consistent  with  the  view 
that  she  [the  plaintiff]  did  not  expect  a  present  conveyance  from  her 
husband,  but  left  it  to  be  made  by  him  at  some  time  in  the  future."  The 
case  of  Copeland  v.  Barnes,  147  Mass.  388,  stands  on  the  same  ground  in 
effect  as  Forbes  v.  Howe,  102  Mass.  427,  as  does  also  Paine  v.  Waite,  11 
Gray  190. 

On  the  other  hand,  we  think  the  view  which  we  have  taken  is  supported 
by  numerous  authorities.  Williams  v.  Coggeshall,  11  Cush.  442.  Nich- 
erson  v.  Baker,  5  Allen,  142.  Stetson  v.  O'Siillivan,  8  Allen,  321. 
Alden  v.  Marsh,  97  Mass.  160.  Parsons  v.  Topliff,  119  Mass.  245.  At- 
lantic National  Bank  v.  Tavener,  130  Mass.  407.  Holmes  v.  Winchester, 
133  Mass.  140.  James  v.  Newton,  142  Mass.  366.  Tiffany  v.  Boatman's 
Institution,  18  Wall.  375.  Cartwright  v.  Wilmerding,  24  N.  Y.  521. 
Ex  parte  Ames,  7  Nat.  Bankr.  Eeg.  230.  Sparhawk  v.  Richards,  12  Nat. 
Bankr.  Keg.  74. 

The  fact  that  the  agreement  related  to  the  conveyance  of  real  estate 
was  not,  in  Nickerson  v.  Baker,  5  Allen,  142,  regarded  as  a  valid  objec- 
tion. Moreover,  the  agreement  has  been  executed  and  the  defendant 
has  got  his  security,  and  as  the  court  said  in  Holmes  v.  Winchester,  135 
Mass.  299,  302,  "  can  set  up  *  *  *  any  equities  that  will  avail  her." 
As  already  said,  the  money  was  lent  and  the  security  taken,  for  aught 
that  appears,  in  good  faith.  It  is  not  enough  to  avoid  the  conveyance, 
that  Cyrus  was  insolvent  when  it  was  made,  and  knew  himself  to  be  so, 
and  that  the  defendant  had  reason  to  believe  him  to  be  so,  if  the  convey- 
ance Vv-as  not  made  to  secure  an  antecedent  debt,  or  with  any  intention 
on  the  part  of  the  defendant  to  defeat  the  provisions  of  the  insolvent 
law,  or  with  reason  to  believe  that  such  was  the  purpose  of  Cyrus,  but 
was  given  as  security  for  a  debt  then  incurred. 

It  does  not  appear  from  the  agreed  facts  that  the  defendant  had  any 
reason  to  believe  that  there  was  to  be  any  fraud  upon,  or  evasion  of,  the 
provisions  of  the  insolvent  law.  A  majority  of  the  court  think  that  the 
decree  of  the  Superior  Court  should  be  reversed,  and  that,  as  it  is  con- 
ceded that  the  deeds  were  taken  as  security,  a  decree  should  be  entered  to 
that  effect,  allowing  the  assignee,  if  he  shall  so  elect,  to  redeem  within  a 
certain  time,  upon  paying  what  shall  appear  to  be  due ;  otherwise. 

Bill   to   be   dismissed  with   costs. 


320  SOTJKWINE  v.    SUPREME  LODGE,  K.  of  P.        [part  i. 


SOURWINE  V.  SUPREME  LODGE,  KNIGHTS  OF  PYTHIAS. 

In  the  Appellate  Court  of  Indl\na,  1894. 

[12  Indiana  Appellate   Court  447.] 

The  appellants  are  the  beneficiaries  of  one  Jonathan  Croasdale  who,  in 
1877,  was  admitted  to  membership  in  the  appellee's  endowment  rank, 
entering  classes  first  and  second.  At  this  time  all  members  paid  at  the 
same  rate.  In  1884  a  fourth  class  was  created  in  which  the  amounts  to 
be  paid  were  graduated  according  to  age.  In  1888,  by  amendment  to 
the  constitution,  transfers  from  the  first,  second  and  third  classes  to 
the  fourth  class  were  permitted,  upon  passing  a  medical  examination 
which  should  be  properly  certified  and  upon  payment  of  a  necessary  fee 
"before  he  can  take  the  obligation  admitting  him  to  membership."  The 
applicant  was  obliged  to  surrender  his  endowment  certificates  held  in  the 
other  classes.  The  age  limit,  fifty  years,  imposed  upon  new  applicants 
for  admission  to  the  fourth  class  was  by  express  terms  not  to  apply  to 
members  transferring  from  the  lower  classes  to  the  fourth  class.  In 
March,  1889,  Croasdale  being  then  a  member  in  good  standing  of  the  first 
and  second  classes,  asked  to  be  transferred  to  the  fourth  class.  He 
was  examined  by  appellee's  physician,  found  to  be  in  perfect  mental  and 
physical  health,  and  was  unconditionally  recommended  by  the  physician. 
Croasdale  properly  forwarded  to  the  appellee's  medical  examiner-in-chief 
his  application,  with  the  proper  fees,  oifering  to  surrender  his  certificates, 
but  that  officer  arbitrarily  disapproved  the  examination  and  peremptorily 
rejected  the  application  for  no  other  reason  than  the  applicant's  age. 

On  March  20,  1889,  and  on  Jan.  30,  1891,  Croasdale  renewed  his  appli- 
cation and  was  met  with  the  same  arbitrary  refusal. 

On  ^[ay  5,  1892,  Croasdale  died.  The  first  and  second  classes  had  then 
become  so  depleted  that  they  paid  but  trifiing  sums  to  beneficiaries. 
Proper  proofs  were  made  and  the  appellants  in  this  action  seek  to  recover 
upon  the  ground  that  Croasdale  was  equitably  a  member  of  the  fourth 
class.' 

Gwi.x^  J.  Clearly,  Croasdale  possessed  all  the  necessary  qualifica- 
tions, complied  strictly  with  the  requirements  of  appellee's  constitution, 
and  was  in  fact  entitled  to  bo,  and  under  the  allegations  of  the  plead- 
ings, ought  to  have  been,  transferred. 

Appellee's  position  is  that  nevertheless  he  was  not  transferred  in  fact, 
and  could  not  be  without  the  approval  of  the  medical  examiner-in-chief, 
and  for  this  reason  his  beneficiaries  can  not  recover. 

It  is  further  contended  that  he  had,  by  not  asserting  his  legal  right 

'This  staiciiK'iit  of  fiicts  is  abridged.  The  part  of  the  opinion  relating  the 
facts  is  omitted. 


CHAP.  IV.]     SOURWINE  v.  SUPREME  LODGE,  K.  of  P.  321 

to  the  transfer  and  not  tendering  the  dues,  acquiesced  and  abandoned 
his  right  to  the  transfer. 

The  constitution  and  by-laws  of  such  an  organization  are  elements  of 
the  contract  of  insurance. 

They  measure  and  determine  the  member's  duties  and  liabilities,  and 
not  only  these  but  his  rights  as  well.  Supreme  Lodge  K.  of  P.  v.  Knight, 
117  Ind.  489. 

Not  only  the  private  members,  but  the  officers,  are  under  obligation 
to  conform  their  conduct  to  them. 

Under  the  averments,  the  action  of  the  medical  examiner-in-chief,  in 
rejecting  the  application  solely  by  reason  of  Croasdale's  age,  was  in 
direct  violation  of  the  constitution. 

Croasdale's  fellows  in  the  first  and  second  classes  had  been  per- 
mitted to  transfer,  and  thus  his  classes  had  been  depleted.  In  so  doing 
they  and  the  association  only  exercised  their  legal  right,  but  the  right  to 
follow  them,  was  vested,  by  the  constitution,  in  Croasdale.  He  was  al- 
ready a  member  of  the  rank,  and  this  right  of  transfer  was  a  contract 
right,  and  a  beneficial  one  of  which  the  officers  could  not  arbitrarily  de- 
prive him.  Supreme  Council,  etc.,  v.  Forsinger,  325  Ind.  52;  Supreme 
Lodge  K.  of  P.  v.  Knight,  supra. 

His  position  was  manifestly  radically  different  from  that  of  one  who 
was  not  a  member  of  the  organization,  but  was  seeking  admission  into  its 
ranks,  as  in  the  case  of  Matkin  v.  Knights  of  Honor,  82  Tex.  301.  The 
contractual  rights  and  obligations  were  already  existing  between  him 
and  the  association. 

Having  done  everything  that  was  to  be  done  by  him  to  eifectuate  the 
transfer,  and  being  in  all  things  entitled  to  it,  it  did  not  rest  in  the  dis- 
cretion of  the  examiner  to  refuse  him.  Had  the  examiner  refused  him 
because  he  was  not,  in  his  judgment,  possessed  of  the  proper  physical 
qualifications,  it  might  well  be  that  the  examiner's  action,  in  the  absence 
of  fraud  or  mistake,  at  least,  would  be  final  and  conclusive  against  him; 
but  no  such  question  is  here  presented.  On  the  contrary,  the  disapproval 
is  arbitrary  and  without  cavise,  solely  by  reason  of  his  age,  which,  by  the 
express  letter  of  the  society's  law,  is  not  a  reason  for  rejection. 

Here  is  a  manifest  wrong.  Yet  it  is  asserted  that  although  there  was 
a  wrong  there  is  now  no  remedy.  To  so  hold  would  be,  to  use  a 
favorite  phrase  of  Judge  Elliott's,  a  reproach  to  the  law.  The  arm  of 
the  law  has  not  been  so  shortened  as  to  leave  the  appellants  remediless. 

If  the  application  of  the  stricter  rules  of  law,  as  formerly  admin- 
istered, do  not  furnish  the  remedy,  the  more  expansive  and  beneficent 
principles  of  equity  are  ample  for  the  purpose. 

An  eminent  law  writer  speaks  thus:  "Equitable  remedies,  on  the 
other  hand,  are  distinguished  by  their  flexibility,  their  unlimited  variety, 
their  adaptabilitj^  to  circumstances,  and  the  natural  rules  which  govern 
their  use.  There  is  in  fact  no  limit  to  their  variety  and  application, 
the  court  of  equity  has  the  power  of  devising  its  remedy  and  shaping  it 


322  SOUKWINE  v.  SUPREME  LODGE,  K.  of  P.      [part  i. 

so  as  to  fit  the  changing  circumstances  of  every  case  and  the  complex 
relations  of  all  the  parties."    1  Pom.  Eq.,  section  109. 

Again  he  says,  at  section  111 :  "  It  has,  therefore,  never  placed  any 
limit  to  the  remedies  vphich  it  can  grant;  either  with  respect  to  their  sub- 
stance, their  form,  or  their  extent ;  but  has  always  preserved  the  elements 
of  flexibility  and  expansiveness,  so  that  new  ones  may  be  invented  or 
old  ones  modified,  in  order  to  meet  the  requirements  of  every  case,  and 
to  satisfy  the  needs  of  a  progressive  social  condition,  in  which  new 
primary  rights  and  duties  are  constantly  arising,  and  new  kinds  of 
wrongs  are  constantly  committed." 

While  this  case  is  one  of  a  peculiar  nature,  sui  generis,  for  which 
neither  the  counsel  nor  the  court  have  found  any  direct  precedent,  the 
application  of  a  familiar  rule  of  equity  furnishes,  as  it  seems  to  me,  a 
safe  guide  to  its  disposition. 

That  this  application  ought  to  have  been  approved  and  that  the  trans- 
fer ought  to  have  been  made  can  not  be  successfully  controverted,  nor 
are  these  propositions  denied  by  appellee's  counsel.  They  assert, 
however,  that  while  these  things  ought  to  have  been  done  they  were  not. 
Equity  furnishes  the  remedy  for  just  exactly  that  state  of  affairs,  for  the 
very  first  maxim  with  which  we  meet  in  equity  is  that  it  "  will  regard 
that  as  done  which  in  good  conscience  ought  to  be  done."  This  principle 
has  been  applied,  says  the  same  author,  "  to  every  instance  where  an 
equitable  right,  with  respect  to  the  subject-matter,  rests  upon  one  person 
towards  another:  to  every  kind  of  case  where  an  affirmative  equitable 
duty  to  do  some  positive  act  devolves  upon  one  party  and  a  corresponding 
equitable  right  is  held  by  another  party."  Pom.  Eq.,  section  364;  vide, 
also,  sections  369  and  370. 

In  Kentuchy.  etc.,  Ins.  Co.  v.  Jenlis,  5  Ind.  96,  it  was  objected  that 
ihere  could  be  no  recovery  because  no  policy  had  issued,  but  the  court 
said :  "  Jenks  having  been  entitled  to  a  policy  in  his  lifetime,  a  court  of 
equity  will  consider  that  done  which  should  have  been  done,"  and  sus- 
tained a  decree  for  a  satisfaction. 

So,  also,  in  Woody  v.  Old  Dominion  Insurance  Co.,  31  Graft.  362,  and 
Tayloe  v.  Merchants'  Fire  Insurance  Co.,  9  How.  (U.  S.  R.)  390,  where 
insurance  contracts  were  to  be,  but  had  not  been,  issued,  it  was  held  that 
equity  would  enforce  payment  of  the  losses  directly  without  there  having 
been  a  previous  decree  for  specific  performance. 

So  equity  will  grant  relief  here,  althought  Croasdale  never  in  his  life- 
time comx)ellod  the  transfer,  by  mandate,  as  he  might  have  done. 

We  do  not  think  it  lies  in  appellee's  mouth  to  complain  that  some 
hardship  may  be  imposed  on  it  by  reason  of  his  failure  to  insist  on  his 
rights  in  a  court  of  law  before  his  death. 

For  whatever  hardship  may  arise  therefrom,  appellee,  and  not  he,  is 
responsible. 

Neither  do  we  think  that  appellee  is  in  a  position  to  take  any  ad- 
vantage from  the  plea  that  by  allowing  this  action  appellants  are  per- 


CHAP.  IV.]     SOUKWINE  V.  SUPREME  LODGE,  K.  of  P.  323 

mitted  to  reap  the  benefits  of  Croasdale's  membership  without  his  having 
borne  the  burdens.  That  he  did  not  bear  these  burdens  during  the  fif- 
teen months  after  the  final  rejection  of  his  application  for  transfer  was 
due  entirely  to  the  wrongful  conduct  of  appellee,  and  can  in  no  de- 
gree be  ascribed  to  any  delinquency  upon  his  part.  Whatever  unpleasant 
results  may  follow  from  appellee's  own  misconduct  should  be  borne  by 
appellee,  and  can  not  be  shifted  to  others  who  are  wholly  innocent. 

It  is  a  well  known  maxim  that  parties  are  not  to  be  permitted  to  take 
advantage  of  their  o\x\\  wrong. 

In  Jackson  v.  Northwestern,  etc..  Relief  Assn.,  78  Wis.  463,  we  find  a 
case  closely  analogous  to  the  one  under  consideration.  The  membership 
of  the  deceased  had  there  been  declared  forfeited,  but  there  was,  under 
the  by-laws,  a  right  to  reinstatement  on  certain  terms,  among  which  was 
furnishing  a  satisfactory  certificate  of  health.  The  member  took  the 
necessary  steps,  and  mailed  the  application  and  money,  with  a  proper 
certificate  of  health,  but  died  before  these  were  received  at  the  offico 
of  the  association,  which  thereupon,  after  notice  of  her  death,  rejected 
the  application  for  reinstatement. 

It  is  said  by  the  Supreme  Court,  per  Orton,  J. :  "  The  court  instructed 
the  jury  on  that  subject  as  follows:  '  That  Mrs.  Jackson  was  dead  before 
the  reinstatement  and  money  reached  Madison,  if  you  find  such  to  be  the 
fact,  was  good  cause  for  the  disapproval  of  her  application.'  This  in- 
struction was  also  erroneous.  If  Mrs.  Jackson  mailed  the  papers  and 
money  in  proper  time,  according  to  the  by-laws  or  the  custom  of  the  com- 
pany, her  rights  became  fixed  by  it,  and  her  subsequent  death,  before  the 
package  reached  the  company,  could  not  change  them.  She  had  done  all 
that  the  companj^  required  of  her  by  the  notice  of  reinstatement." 

Again  it  is  said :  "  The  court  erred  also  by  instructing  the  jury  that  the 
company  had  the  right  to  reject  her  application  for  reinstatement  '  upon 
the  ground  that  it  did  not  consider  her  statements  in  regard  to  health 
sufficient.' 

"  If  Mrs.  Jackson  secured  any  right  whatever  by  so  responding  to  this 
last  reinstatement  notice  of  the  company,  then  the  certificate  of  health 
she  sent  with  the  other  papers  and  the  money  did  not  depend  upon  how 
the  company  considered  it,  but  upon  its  sufficiency  in  fact." 

Thus  it  is  held  that  one  may  be  by  the  courts  regarded  as  entitled 
to  the  rights  of  membership  although  not  recognized  as  such  by  the 
officers. 

By  deducting  from  the  sums  due  appellants  the  amount  of  dues  which 
would  have  been  collectible  from  Croasdale  in  the  fourth  class,  appellee 
will  be  in  the  same  position  it  would  have  occupied  had  it  complied  with 
the  requirements  of  its  own  laws  and  made  the  desired  transfer. 

Appellee's  laws  are,  as  we  have  said,  made  for  the  government  of  its 
officers,  as  well  as  its  members.  Had  the  officer  obeyed  the  law,  as 
Croasdale  did,  all  controversy  would  have  been  avoided. 

After  Croasdale  had  so  fully  complied  with  appellee's  rules  we  do  not 


324  WILCOCKS  v.  WILCOCKS  [part  r. 

think  he  can  be  deemed  to  have  acquiesced  in  its  officer's  wrongful  con- 
duct and  to  have  abandoned  his  legal  and  equitable  rights  merely  be- 
cause he  did  not  commence  a  mandate  or  make  a  formal  tender  of  fourth 
class  dues,  which  would  have  been  useless  in  the  face  of  appellee's  con- 
tinued refusal  to  make  the  transfer,  which  was  equivalent  to  an  an- 
nouncement that  it  would  not  receive  dues  from  him  in  that  class. 

Our  conclusion,  therefore,  is  that  the  trial  court  erred  in  sustaining 
the  demurrer  to  the  complaint. 

Judgment  reversed. 

Eeinhard,  J.,  did  not  participate. 

Filed  April  25,  1895.' 


H. — Equity  Imputes  an  Intent. 


KIKKINGTON  v.  ASTEY. 
In  Chancery,  1637. 

[Toihill  78.] 

The  grandfather  deviseth  lands  to  his  son  to  pay  ten  pounds  per 
annum  to  the  son's  three  daughters,  the  father  gives  two  hundred  pounds 
in  marriage  with  one,  whether  the  ten  pounds  per  annum  should  be  in- 
cluded in  the  two  hundred  pounds  or  not ;  decreed  it  shall  be  included. 


WILCOCKS  V.  WILCOCKS. 

In  Chancery,  before  Lord  Keeper  Cowper,  1706. 

[2  Vernon  558.]' 

The  plaintiff's  father  upon  his  marriage  covenanted  to  purchase 
lands  of  2001.  per  ann.  and  to  settle  the  same  upon  himself  for  life,  and 
on  his  wife  for  her  jointure,  and  to  the  first  and  other  sons  in  tail,  re- 
mainder to  the  daughters.  The  father,  who  was  a  freeman  of  the  city  of 
London,  died  intestate,  having  purchased  lands  of  the  value  of  2001.  per 

*  As  suggested  by  Judge  Gavin  in  the  principal  case,  Professor  Pomeroy  con- 
sidered most  important  the  maxim — equity  regards  that  done  which  ought  to  be 

*  <Sf.  a.  2  White  and  Tudor's  Leading  Cases  in  Equity,  pt.  1,  833,  ith  Am.  ed., 
vjith  notes. 


CHAP.  IV.]  CUTIIBERT  v.  PEACOCK  325 

ann.  but  made  no  settlement  thereof,  but  permitted  them  to  descend 
upon  the  plaintiS  his  eldest  son;  who  now  brought  a  bill  founded  on 
his  father's  marriage-articles,  to  have  2001.  per  ann.  purchased  out  of  the 
personal  estate,  and  settled  to  the  uses  in  the  marriage-articles. 

Lord  Keeper  [Cowpek].  The  lands  descended,  being  of  2001.  per  ann. 
and  upwards,  ought  to  be  deemed  a  satisfaction  of  the  covenant,  and 
decreed  it  accordingly;  and  that  the  personal  estate  should  be  divided 
and  distributed  amongst  the  three  children,  according  to  the  custom  of 
the  city  of  London,  and  the  statute  for  settling  intestates  estates. 

One  of  the  daughters  having  attained  the  age  of  seventeen  years,  made 
her  will,  and  devised  her  personal  estate. 

Per  Cur.  The  will  is  good  as  to  the  share  that  belonged  to  her  by 
the  statute;  but  as  to  her  orphanage  share,  she  dying  unmarried  before 
twenty-one,  it  survives  to  the  other  orphans  by  the  custom,  and  her  will 
could  not  take  place  upon  her  orphanage  part.* 


CUTIIBERT  V.  PEACOCK. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1707. 

[1  Salheld  155.] 

H.  owed  his  niece  A.  1001.  by  bond,  and  having  two  other  nieces  B.  and 
C.  makes  his  will,  and  bequeaths  3001.  to  his  niece  A.  and  to  his  two 
other  nieces  2001.  a  piece.  After  that  he  borrowed  another  1001.  of  his 
niece  A.  and  being  indebted  to  her  in  2001.  died;  and  to  prove  the  -3001. 
should  go  in  satisfaction  of  the  debt,  Mr.  Yernon  insisted,  that  it  was  the 
rule  in  equity,  and  liad  been  often  decreed,  that  where  a  testator  being 

done.  He  stated  it  to  be  fundamental  to  the  doctrines  and  rules  governing  all 
kinds  of  equitable  property;  the  interpretation  and  effect  of  an  executory 
contract  in  equity,  including  contracts  for  the  purchase  and  sale  of  lands,  as- 
signments of  possibilities,  sales  of  chattels  to  be  acquired  in  future,  assign- 
ments of  things  in  action,  equitable  assignments  of  moneys,  and  equitable  liens ; 
express  trusts;  trusts  arising  by  operation  of  law;  and  the  equity  of  redemp- 
tion in  mortgages.     Pomeroy,  Equity  Jurisprudence  §  36-t  et  scq. 

'  "^yilcocl■s  V.  Wilcocks  was  decided  in  accordance  with  the  rule  of  equity, 
that,  where  a  person  covenants  to  do  an  act,  and  he  does  that  which  may 
either  wholly  or  partially  be  converted  to  or  towards  a  completion  of  the 
covenant,  he  shall  be  presumed  to  have  done  it  with  that  intention."  Reporter's 
note.  2  White  and  Tudor,  supra,  p.  835.  And  see  Bispliam's  Principles  of 
Equity  §  46. 

Under  the  maxim,  Equity  will  not  suffer  double  satisfaction  to  be  taken, 
Francis  has  collected  a  considerable  number  of  cases  involving  the  same  prin- 
ciple as  Wilcocks  v.  Wilcocks.    Maxims  41. 


326  BLANDY  t;.  WIDMORE  [parti. 

indebted,  gives  his  debtee  a  legacy  greater  than  his  debt,  it  shall  go  in 
satisfaction;  for  a  man  shall  be  intended  to  be  just  before  he  is  kind; 
otherwise  where  a  legacy  is  less,  for  that  is  neither  to  be  just  nor  kind, 
and  shall  not  be  taken  to  go  in  satisfaction  of  any  part.  Cowper  Lord 
Chancellor  said,  it  might  be  as  good  equity  to  construe  him  to  be  both 
just  and  kind,  if  he  intended  to  be  both;  that  if  any  part  of  3001.  be 
applied  to  the  payment  of  the  debt,  as  for  so  much  it  is  not  a  gift, 
whereas  a  legacy  must  be  taken  to  be  a  gift  or  gratuity :  and  there  being 
assets  and  some  proofs  of  the  testator's  greater  kindness  to  A.  than  his 
other  nieces,  his  lordship  decreed  her  the  whole  3001.  over  and  above  her 
debt. 


BLANDT  V.  WIDMORE. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1716. 
[1  Peere  Williams  324.]  ' 

Upon  the  marriage  of  A.  with  B.  there  were  articles  reciting,  that,  in 
consideration  of  the  marriage  and  of  the  portion,  it  was  agreed,  that  if 
B.  the  wife  should  survive  A.  her  intended  husband,  A.  should  leave  B. 
6201.  and  accordingly  A.  covenanted  with  B/s  trustees,  that  his  executors, 
within  three  months  after  his  decease,  should  pay  B.  6201.  if  she  should 
survive  him.  A.  died  intestate,  and  without  issiie;  upon  which  B.  the 
wife,  by  the  statute  of  distribution,  became  intitled  to  a  moiety  of 
the  personal  estate,  which  was  much  more  than  6201.  and  the  question 
was,  whether  the  distributive  share  belonging  to  B.  being  more  than 
6201.  should  go  in  satisfaction  of  it  ? 

Serjeant  Hooper:  This  0201.  is  a  debt,  and  debts  must  be  first  paid, 
after  which  the  distribution  is  to  be  made;  and  if  the  intestate  had  made 
a  will,  probably  he  would  have  given  to  his  wife  something  additional  to 
this  6201.  Now,  what  the  statute  gives  is  not  his  gift,  and  being  not 
his  gift,  is  not  to  be  taken  as  his  payment;  or  supposing  it  to  be  his 
gift,  still  it  cannot  be  said  to  be  his  payment. 

Lord  Chancellor  [Cowper]  :  I  will  take  this  covenant  not  to  be 
})roken,  for  the  agreement  is  to  leave  the  widow  6201.  now  the  intestate, 
in  this  case,  has  left  his  widow  0201.  and  upwards,  which  she,  as  adminis- 
tratrix, may  take  presently  upon  her  husband's  death;  wherefore  let  her 
take  it;  but  then  it  shall  be  accounted  as  in  satisfaction  of,  and  to 
include  in  it,  her  demand  by  virtue  of  the  covenant;  so  that  she  shall  not 
come  in  first  as  a  creditor  for  the  0201.  and  then  for  a  moiety  of  the 
.surplus. 

And  Mr.  Vernon  said,  it  had  been  decreed  in  the  case  of  Wilcox  versus 

'/8.  0.  2  White  and  Tudor's  Leading  Cases  in  Equity,  pt.  1,  p.  833. 


CHAP.  IV.]  DEACON  i'.  SMITH  327 

Wilcox,  Trin.  1706.  That  if  a  man  covenants  to  settle  an  estate  of  1001. 
per  annum  on  his  eldest  son,  and  he  leaves  lands  of  the  value  of  lOOl. 
per  annum  to  descend  upon  such  son,  this  shall  be  a  satisfaction  of  the 
covenant  to  settle;  and  that  this  last  was  a  stronger  case,  it  being  the 
■case  of  an  heir,  who  is  favoured  in  equity;  also  the  case  of  Phinney 
versus  Phinney  was  cited : 

Whereupon  the  decree  made  by  Sir  John  Trevor  Master  of  the  Kolls, 
-was  now  affirmed  by  Lord  Chancellor  Coivper. 


DEACON  V.  SMITH. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1746. 

[3  Atkyns  323.] 

In  Easter  Term  1742,  Joseph  Smith,  the  younger,  brought  his  bill 
against  Eleanor  Smith,  the  widow  and  administratrix  of  Joseph  Smith, 
the  father,  and  the  other  defendants,  his  children  by  Eleanor,  for  an 
account  and  distribution  of  the  father's  personal  estate,  and  for  a  dis- 
covery of  the  real  estate  which  he  was  seised  of  at  his  death,  and  all 
mortgages,  &c.,  and  for  an  account  of  rents,  and  to  be  let  into  possession. 

At  the  time  of  his  marriage  with  Eleanor,  the  father  covenanted  that 
■"  the  said  Smith  should  and  would  convey  and  settle  houses,  lands,  and 
tenements,  or  a  rent  charge  issuing  thereout,  of  the  yearly  value  of  forty 
pounds,  on  trustees,  to  the  use  of  himself  for  life,  and  afterwards  to 
Eleanor  for  life,  in  bar  of  dower,  remainder  to  the  heirs  of  Joseph  Smith 
on  the  body  of  Eleanor,  subject  to  a  power  to  charge  the  estate  of  forty 
pounds  j)er  ami.,  with  three  hundred  pounds  as  a  provision  for  the 
younger  children  of  the  marriage.'' 

At  the  time  of  this  agreement  Smith  owned  no  land,  but  afterwards 
purchased  a  freehold  called  Cheeseman's,  of  the  yearly  value  of  nine 
pounds  and  another  freehold  of  the  yearly  value  of  forty  pounds  (an 
undivided  moiety  being  subject  to  life  estate  of  a  widow),  on  which 
latter  he  already  held  a  1000  year  mortgage,  which  he  later  assigned  for 
the  remainder  of  the  term,  for  securing  two  hundred  and  fifty  pounds. 
On  the  testator's  death,  the  widow  entered  upon  the  Cheeseman  estate 
and  paid  off  the  mortgage  debt  upon  the  other  with  the  proceeds  of  the 
personal  estate,  taking  an  assignment  to  one  Stephen  for  the  use  of  the 
holder  of  the  fee. 

The  widow  insisted  that  the  lands  should  be  settled  according  to  the 
marriage  articles.  The  plaintiff  contended  that  his  father  purchased  the 
freehold  estates  with  the  intent  that  the  plaintiff  should  inherit,  and  that 
the  defendant's  marriage  agreement  should  be  made  good  out  of  the  per- 
sonal property. 


328  DEACON  v.  SMITH  [part  i. 

The  Master  of  the  Eolls  declared  for  the  defendant  as  to  the  Cheese- 
man  estate,  and  an  undivided  moiety  of  the  second  estate  in  his  posses- 
sion; but  for  the  plaintiff  as  to  the  moiety  of  the  second  estate  not  in  the 
father's  possession  at  the  time  of  purchase.  From  this  decree,  the  plain- 
tiff, as  devisee  of  Joseph  Smith,  the  younger,  who  died  after  suit  brought, 
now  brings  a  bill  of  review/ 

Lord  Chancellor  [Hardwicke]  took  some  time  to  consider,  and  this 
day  gave  judgment.  The  plaintiff's  council  have  relied  upon  two  objec- 
tions. First,  That  there  was  no  sufficient  act  appears  to  be  done  by 
Joseph  Smith  the  elder,  and  covenantor,  to  affect  or  subject  these  lands 
to  the  articles.  Secondly,  That  it  might  be  prejudicial  to  purchasers 
and  creditors,  to  construe  these  lands  to  be  liable  to  the  articles.^  As  to 
the  first,  I  am  of  opinion,  that  there  are  not  sufficient  reasons  to  deter- 
mine that  these  lands  are  not  bound  by  the  articles.  In  all  these  cases, 
the  court  have  gone  upon  the  intention  of  parties,  and  have  not  re- 
quired that  strictness  as  in  the  statute  of  frauds  and  perjuries;  and 
many  cases  have  gone  so  far,  as  to  rely  upon  a  strong  presumption 
merely,  without  any  positive  evidence.  What  has  governed  the  court  is, 
that  a  man  can  be  no  contractor  with  his  heir  or  executor,  for  they  all 
derive  under  his  will  or  permission ;  therefore,  that  the  intention  should 
be  the  rule,  and  turn  the  balance.  The  case  of  Lechmere  versus  Lech- 
mere,  the  13th  of  May  1735,  I  mention  for  the  sake  of  the  general  ground, 
for  there  sir  Joseph  Jekyl  laid  it  down,  the  intention  ought  to  be  the  rule, 
agreeable  to  the  judgment  of  three  successive  chancellors,  lord  Somers, 
lord  Cowper,  and  lord  Harcourt. 

Lord  Talbot,  on  the  rehearing,  laid  down  the  same  rule,  and  said,  "  the 
"  cases  upon  satisfaction  are  generally  between  debtor  and  creditor ; 
"and  the  heir  is  no  creditor,  but  only  stands  in  his  ancestor's  place: 
"  one  rule  of  satisfaction  is,  that  it  depends  upon  the  intent  of  the  party, 
"and  that  which  way  soever  the  intent  is,  that  way  it  must  be  taken; 
"  but  this  is  to  be  understood  with  some  restriction,  as  that  the  thing 
"  intended  for  a  satisfaction  be  of  the  same  kind,  or  a  greater  thing,  in 
"satisfaction  of  a  less;  for  if  otherwise,  this  court  "will  compel  a  man  to 
"be  just  before  he  is  generous,  and  so  will  decree  both:"  but  these  ques- 
tions, he  said,  are  no  ways  material  in  this  case,  ivhich  turns  entirely 
upon  lord  Lechmere' s  intent  at  the  time  of  the  purchases  made.  Gas.  in 
Chan,  in  Lord  Talbot's  Time  92.  I  cite  it,  to  shew,  that  both  the  master 
of  the  Rolls,  and  lord  Talbot,  who  differed  in  opinion  as  to  the  point 
only  of  the  fee-simple  lands,  purchased  since  the  covenant,  laid  down  the 
same  general  rule  as  to  the  intention.  Therefore,  I  am  of  opinion,  it 
is  not  material  in  this  case,  to  require  particular  acts  to  be  done;  but  if 
there  is  a  sutficient  presumption,  it  was  the  intention  of  Joseph  Smith 
the  elder,  it  should  go  according  to  the  articles,  the  land  is  hound  by  the 
articles. 

'The  statement  of  fiu-ts  has  boon  abridgod. 

'That  part  of  the  opinion  dealing  with   this  objection  is  omitted. 


CHAP.  IV.]      BLAKE  V.  SIR  EDWARD  IIUNGERFORD  329 


I. — Where  the  Equities  are  Equal,  the  0>;e  Prior  in  Time  Shall 

Prevail. 


BLAKE  V.  SIR  EDWARD  HUNGERFORD. 
In  Chancery,  defore  Lord  Keeper  Wright,  1701. 

[Precedents  in  Chancery  158.]  ' 

Sir  Edward  Hungerford,  seised  in  right  of  his  wife  of  the  manor  of 
D.  procures  her  to  join  with  him  in  a  fine  by  way  of  mortgage  in  fee  for 
securing  15000  /.  and  the  equity  of  redemption  thereof  upon  payment 
of  the  money  is  limited  to  Sir  Edward  for  life,  without  impeachment  of 
waste:  remainder  to  the  wife,  and  her  heirs  and  assigns. 

Sir  Edward  afterwards  acknowledges  a  statute  of  500 1,  to  George 
Arnold,  to  whom  Sir  Jeremy  Samhrook  is  administrator;  then  the  wife 
dies,  and  Anthony  Hungerford-  was  her  sou  and  heir.  Sir  Edward 
Hungerford  contracted  tvith  Anthony  his  son,  who  had  no  notice  of  the 
statute,  to  sell  him  his  estate  for  life  in  the  manor  for  3000  I.  and  accord- 
ingly Anthony  procures  3000  I.  more  to  be  taken  up  upon  the  mortgage, 
and  the  mortgage  to  be  transferred  to  the  new  mortgagee,  who  paid  ofE 
the  old  ones,  and  furnished  the  3000  I.  to  Sir  Edward  Hungerford,  and 
the  equity  of  redemption  is  limited  to  Anthony,  and  he  covenants  to  pay 
the  money;  and  the  mortgagee's  covenant  on  payment  of  the  money  to 
assign  to  him,  or  as  he  shall  direct. 

Then  Anthony  acknowledges  a  statute  to  one  Mellish  (who  had  no 
notice  of  the  500  I.  statute)  and  after  makes  his  will,  and  devises  legacies 
to  the  plaintiffs  and  chargcth  them  on  the  said  manor,  and  deviseth  the 
manor  itself  to  Sir  Edward  Hungerford  and  his  heirs;  and  the  great 
question  was.  Whether  Samhrook,  who  had  the  interest  of  the  statute 
acknowledged  by  Sir  Edward,  whilst  he  was  tenant  for  life,  or  Mellish, 
who  was  Conuzee  of  Anthony,  after  his  purchase  of  Sir  Edward's  estate 
for  life,  should  be  preferred  in  payment  ? 

The  Master  of  the  Rolls  decreed,  that  Sir  Jeremy  Samhrook's  statute 
must  come  in  after  the  creditors  and  legatees  of  Sir  Anthony  Hunger- 
ford; and  that  Mellish  must  come  in  immediately  after  Anthony's 
legacies,  by  virtue  of  Mellish's  statute,  Mellish  having  joined  in  the  decla- 
ration of  trust;  and  this  decree  was  affirmed  by  my  Lord  Keeper,  with 
the  assistance  of  Mr.  Justice  Blencow  and  Lord  Chief  Justice  Trevor. 

The  reasons  urged  for  it  were,  that  though  neither  had  the  legal 
estate,  and  that  between  two  equities  que  prior  est  tempore  potior  est 
jure,  yet  that  must  be  understood  of  bare  equities,  but  in  this  case 

'  /S.  C.  2  Eq.  Cas.  Abr.  256. 


330  BRACE  v.  DUCHESS  OF  MARLBOROUGH        [part  r. 

Anthony  Hungerford  had  more  than  a  bare  equity;  that  the  case  of 
Smith  and  Christ's  Hospital  did  not  come  up  to  this  case,  for  there  was 
a  term  standing  out,  to  which  neither  party  had  a  right;  but  by  An- 
thony's purchase  the  whole  interest  is  united  in  him,  and  they  who  had 
the  legal  interest  covenanted  to  assign  to  him,  and  are  but  his  trustees 
after  payment  of  the  mortgage  money,  and  it  differs  little  from  the  com- 
mon case,  where  a  third  mortgagee  buys  in  the  first  mortgage  in  trust  for 
himself,  and  Anthony  may  make  use  of  his  trustee's  name  at  law,  either 
to  defend  or  recover,  and  may  have  an  action  at  law  against  them  to 
assign. 

That  though  Sir  Edward's  equity  for  life  would  have  entitled  him,  on 
payment  of  a  third  part,  to  redeem,  and  the  500  /.  statute  was  a  charge  ^ 
upon  that  equity,  yet  that  is  liable  to  be  defeated  by  a  subsequent  incum- 
brancer without  notice;  but  such  purchaser  must  not  be  a  purchaser  of 
a  bare  equity  only,  for  then  the  first  will  prevail;  but  Anthony  is  a  pur- 
chaser of  Sir  Ediuard's  equity,  and  the  legal  estate  together,  and  will 
have  the  protection   of  the   legal   estate. 

His  deed  of  purchase  takes  notice  of  the  case,  and  that  the  mort- 
gage is  assigned  at  his  instance  and  by  his  procurement,  and  so  he 
purchases  the  benefit  of  the  legal  estate,  together  with  the  equity. 

If  a  third  mortgagee  takes  only  an  agreement  of  the  first  mortgagee 
to  convey  to  him,  the  second  cannot  in  such  case  compel  him  to  assign  to 
him,  because  such  agreement  was  no  more  than  what  they  might  have 
•done  without  any  agreement:  and  in  this  case  Anthony  is  not  entitled 
upon  the  old  equity  of  Sir  Edward,  but  on  the  new  equity  raised  on  the 
new  mortgage;  and  he  is  an  absolute  purchaser  of  the  estate  subject  to 
the  mortgage,  and  must  have  the  protection  of  it ;  and  to  decree  a  convey- 
ance to  Sir  Jeremy  Samhrook,  would  be  to  decree  a  breach  of  a  fair  and 
lawful  covenant  and  agreement. 


BRACE  V.   DUCHESS  OF  MARLBOROUGH. 

In  Chancery,  iii:roRK  Sir  Joseph  Jekyll,  M.  R.,  1728. 

[2  Peere    Williams  49L]  ' 

In  this  case  it  appeared  that  a  puisne  incumbrancer  bought  in  a  prior 
mortgage,  in  order  to  unite  the  same  to  the  puisne  incumbrance,  but  it 
being  proved  there  was  a  mortgage  prior  to  that,  the  court  clearly  held 
that  the  puisne  incumbrancer  where  he  had  not  got  the  legal  estate,  or 
whfrf   the  legal   estate  was   vested   in   a   trustee,  could   there  make   no 

"  Only  a  part  of  tliis  case  is  printed  here. 


CHAP,  iv.]        BERRY  /'.  MUTUAL  INSURANCE  CO.  331 

advantage  of  his  mortgage;  but  in  all  cases  where  the  legal  estate  is 
standing  out,  the  several  incumbrances  must  be  paid  according  to  their 
priority  in  point  of  time :  qui  prior  est  in  tempore,  potior  est  in  jure.' 


Clark  v.  Abbot  (1741)  Barnard  Ch.  457,  460.' — Lord  Chancellor 
[Hardwicke]  said  his  opinion  was.  That  the  PlaintiflF  was  entitled  to 
Relief  as  far  as  he  can  take  that  Relief  within  the  compass  of  the  former 
Decree.  He  said,  if  the  Plaintiff  had  got  the  legal  Estate,  either  in  him- 
self or  a  Trustee  for  him,  so  that  he  could  have  brought  an  Ejectment, 
and  put  the  Defendants  to  have  been  Plaintiffs  here,  it  might  indeed 
have  deserved  Consideration,  whether  these  Defendants  would  have  been 
entitled  to  have  redeemed  the  present  Plaintiff.  But  as  the  Plaintiff  has 
not  the  legal  Estate,  and  is  forced  to  come  into  Equity,  he  must  sub- 
mit to  be  redeemed  by  Anthony  Abbot,  who  is  one  of  the  Defendants, 
and  can  put  no  other  Terms  upon  his  redeeming  him,  than  such  as  fall 
within  the  Compass  of  the  Decree,  which  has  been  mentioned.  Qui  prior 
est  tempore,  potior  est  ]ure  is  a  rule  that  holds  in  Respect  of  equitable 
Rights  as  well  as  in  Respect  of  legal  ones.'  In  the  present  Case,  Robert 
had  the  first  equitable  Right,  and  therefore  his  Mortgage  must  be  paid 
■ofi  in  Preference  to  that  of  the  Plaintiff. 


BERRY  V.  MUTUAL  INSURANCE  COMPANY. 

In    the    Court    of    Chancery    of    New    York,    before    Ch.ancellor 

Kent,  1817. 

[2  Johnson's  Chancery  603.] 

The  Chancellor.  The  equitable  rights  of  the  parties,  in  this  case, 
must  have  reference  to  the  time  when  the  knowledge  of  their  respective 
mortgages  was  communicated  to  each  other,  in  the  winter  of  1814,  and 
prior  to  the  registry  of  the  elder  mortgage.     The  subsequent  registry  by 

'"Then  the  rule  in  equity  is,  qui  prior  tempore  potior  jure;  and  as  all  the 
defendants  as  well  as  the  plaintiff's  have  but  an  equity,  that  general  rule 
must  prevail  with  this  distinction  (which  yet  will  conchide  in  favor  of  the 
plaintiffs)  that  it  holds  only  where  none  of  the  parties  have  a  better  right 
to  call  for  the  legal  estate  than  the  others;  for  there  are  cases,  where  it  is  held, 
that  they  who  have  such  a  right  shall  be  preferred.  In  Brace  v.  Duchess  of 
Marlborough,  2  Will.  495,  the  general  rule  only  is  laid  down  without  entering 
into  any  exception  or  particularity  therefrom.  But  in  another  case  in  '^'ern. 
such  exception  appears." — Lord  Hardwicke  in  Earl  of  Pomfret  v.  Lord  Wind- 
sor  (1752)   2  Ves.  8r.  472,  486. 

'-S.    C.  2    Eg.   Ca.   Ahr.   G06. 

*"And  therefore  among  the  males  the  elder  brother  and  his  posterity  shall 


332  BERRY  v.  MUTUAL  INSURANCE  CO.  [part  i. 

the  plaintiffs  was  of  no  avail.  The  rights  of  the  parties  had  become  fixed, 
by  means  of  the  notice,  previously,  mutually  and  concurrently  given, 
and  which  notice,  as  to  them,  answered  all  the  purpose  and  object  of  a 
registry.  Priority  of  registry  never  prevails  over  a  previous  notice  of  an 
unregistered  mortgage.  (10  Johns.  Rep.  461,  2.)  In  considering  this 
case,  then,  I  shall  place  entirely  out  of  view  the  fact  of  the  registry. 
The  real  point  in  the  case  is,  which  of  the  unregistered  mortgages  had 
the  preference  in  equity,  when  the  information  of  their  existence  was 
given  and  received. 

If  there  be  several  equitable  interests  affecting  the  same  estate,  they 
will,  if  the  equities  are  otherwise  equal,  attach  upon  it,  according  to  the 
periods  at  which  they  commenced;  for  it  is  a  maxim  of  equity,  as  well 
as  of  law,  that  qui  prior  est  tempore  potior  est  jure.  This  rule  has  been 
repeatedly  declared;  (Clarke  v.  Ahhott,  2  Eq.  Cas.  Ahr.  606  pi.  41. 
Bristol  V.  Hunger  ford,  2  Vern.  525.  Symmes  v.  Symonds,  1  Bro.  P.  C. 
66.  Brace  v.  Marlborough,  2  F.  Wms.  492,  495.)  and  we  are  to  see  if 
there  be  anything  in  this  case  to  prevent  the  application  of  it. 

There  is  no  fraud  charged  or  proved  upon  the  plaintiffs,  and  if  they 
are  to  be  postponed,  notwithstanding  they  have  the  elder  mortgage,  it 
must  be  on  the  ground  of  culpable  negligence,  either  in  leaving  the  lease 
with  the  mortgagor,  when  they  took  the  mortgage  of  his  term,  or  in  not 
causing  their  mortgage  to  be  seasonably  registered.  I  feel  strongly  dis- 
posed to  give  to  these  circumstances  all  the  weight  to  which  they  can  be 
entitled. 

1.  Tt  is  understood  to  have  been  the  old  rule  in  the  English  chancery, 
that  if  a  person  took  a  mortgage,  and  voluntarily  left  the  title  deeds  with 
the  mortgagor,  he  was  to  be  postponed  to  a  subsequent  mortgagee,  with- 
out notice,  and  who  was  in  possession  of  the  title  deeds.  The  reason  of 
the  rule  was,  that,  by  leaving  the  title  deeds,  he  enabled  the  mortgagor 
to  impose  upon  others  who  have  no  registry  to  resort  to,  except  in  the 
counties  of  Yorkshire  and  Middlesex,  and  who,  therefore,  can  only  look 
for  their  security  to  the  title  deeds,  and  the  possession  of  the  mortgagor. 
The  rule  was  so  understood  and  declared,  by  Mr.  Justice  Burnet,  in 
Ryall  v.  Bowles,  (1  Ath.  168,  172.  1  Vesey,  360.)  and  by  Mr.  Justice 
Buller,  in  Goodtiile  v.  Morgan,  (1  Term  Rep.  762.)  and  there  are  de- 
cisions which  have  given  great  weight  to  the  circumstance  of  the  title 
deeds  being  in  possession  of  the  junior  mortgagee.  Thus,  in  Head  v. 
Edgarton,  (3  P.  Wms.  279.)  the  lord  chancellor  said,  it  was  hard  enough 
upon  a  subsequent  mortgagee,  that  he  had  lent  his  money  upon  lands 
subject  to  a  prior  mortgage,  without  notice  of  it,  and,  therefore,  he 
could  not  add  to  his  hardship,  by  taking  away  from  him  the  title  deeds, 

inherit  land?  in  fee  simple  as  heirs  before  any  younger  brother,  or  any  de- 
scending from  him,  because  (as  Littleton  saith)  he  is  pluis  digne  dc  sanke. 
Quod  privs  est  dignius  est,  and  qui  prior  est  tempore  potior  est  jure.  Si  qiiis 
pliircs  filios  hahucrit,  jus  propriclatis  primo  desccndit  ad  primo  gcnitum,  eo 
qiK/d  inventus  est  primo  in  rcrum  natura.^'     Co.  Litt.   14  a. 


CHAP.  IV.]  PIIILLTPS  V.  PHILLIPS  333 

and  giving  them  to  the  elder  mortgagee,  unless  the  first  mortgagee  paid 
him  his  money;  especially  as  the  first  mortgagee,  by  leaving  the  title 
deeds  with  the  mortgagor,  had  been,  in  some  measure,  accessory  in  draw- 
ing in  the  defendant  to  lend  him  money.  This  case,  however,  so  far  from 
establishing  what  was  supposed  to  be  the  old  rule  of  equity,  evidently 
contradicts  it,  and  admits  the  better  title  in  the  first  mortgagee.  So,  in 
case  of  Stanhope  v.  Veniey,  before  Lord  Northington,  {Butler's  note 
io  Co.  Litt.  290.  296.  §  13.)  the  second  mortgagee,  without  notice,  had 
possession  of  the  title  deeds,  but  the  chancellor  did  not  give  him  the  pref- 
erence on  that  single  circumstance,  but  because  he  also  had  got  possession 
of  an  outstanding  term.  There  does  not  seem,  therefore,  to  be  the 
requisite  evidence  of  the  existence  of  any  such  rule  in  equity,  as  has 
been  stated  by  some  of  the  judges;  and  if  there  was,  a  different  rule  has 
been  since  established.  It  is  now  the  settled  English  doctrine,  that  the 
mere  circumstance  of  leaving  the  title  deeds  with  the  mortgagor,  is  not, 
of  itself,  suificient  to  postpone  the  first  mortgagee,  and  to  give  the  pref- 
erence to  a  second  mortgagee,  who  takes  the  title  deeds  with  his  mort- 
gage, and  without  notice  of  the  prior  encumbrance.  There  must  be 
fraud,  or  gross  negligence,  which  amounts  to  it,  to  defeat  the  prior  mort- 
gage. There  must  be  something  like  a  voluntary,  distinct,  and  un- 
justifiable concurrence,  on  the  part  of  the  first  mortgagee,  to  the  mort- 
gagor's retaining  the  title  deeds,  before  he  shall  be  postponed.  Lord 
Thurlow,  in  Tourle  v.  Rand,  (2  Bro.  650.)  said,  he  did  not  conceive  of 
any  other  rule  by  which  the  first  mortgagee  was  to  be  postponed,  but 
fraud  or  gross  negligence,  and  that  the  mere  fact  of  not  taking  the  title 
deeds  was  not  sufficient ;  and  that  if  there  were  any  cases  to  the  contrary, 
he  wished  they  had  been  named.  So  the  rule  was  also  understood  by 
Chief  Baron  Eyre,  in  Thumb  v.  Fluitt,  (2  Anst.  432.)  and  has  since  been 
repeatedly  recognized.  (Lord  Eldon,  in  6  Vesey,  183.  190.  Sir  William 
Grant,  in  12  Vesey,  130.  1  Fonh.  153.  155.  note.)  It  is  admitted,  by 
these  same  high  authorities,  to  be  just,  that  the  mortgagee,  who  leaves 
the  title  deeds  with  the  mortgagor,  so  as  to  enable  him  to  commit  a  fraud, 
by  holding  himself  out  as  absolute  owner,  should  be  postponed;  but 
the  established  doctrine  is,  that  nothing  but  fraud,  express  or  implied, 
will  postpone  him. 


Phillips  v.  Phillips  (1861)  4  De  G.  F.  &  J.  208,  215.— The  Lord 
Chancellor  [Westbury].  *  *  *  I  take  it  to  be  a  clear  proposition 
that  every  conveyance  of  an  equitable  interest  is  an  innocent  convey- 
ance, that  is  to  say,  the  grant  of  a  person  entitled  merely  in  equity  passes 
only  that  which  he  is  justly  entitled  to  and  no  more.  If,  therefore,  a 
person  seised  of  an  equitable  estate  (the  legal  estate  being  outstanding), 
makes  an  assurance  by  way  of  mortgage  or  grants  an  annuity,  and  after- 
wards conveys  the  whole  estate  to  a  purchaser,  he  can  grant  to  the  pur- 
chaser that  which  he  has,  viz.,  the  estate  subject  to  the  mortgage  or 


334  RICE  V.  RICE  [part  l 

annuity,  and  no  more.  The  subsequent  grantee  takes  only  that  which  is 
left  in  the  grantor.  Hence  grantees  and  incumbrancers  chiiming  in 
equity  take  and  are  ranked  according  to  the  dates  of  their  securities; 
and  the  maxim  applies,  ''Qui  prior  est  tempore  potior  est  jure."  The 
first  grantee  is  potior — that  is,  potentior.  He  has  a  better  and  superior 
— because  a  prior — equity.  The  first  grantee  has  a  right  to  be  paid  first, 
and  it  is  quite  immaterial  whether  the  subsequent  incumbrancers  at 
the  time  when  they  took  their  securities  and  paid  their  money  had 
notice  of  the  first  incumbrance  or  not.  These  elementary  rules  are 
recognized  in  the  case  of  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms. 
491,  and  they  are  further  illustrated  by  the  familiar  doctrine  of  the 
Court  as  to  tacking  securities.  It  is  well  known  that  if  there  are  three 
incumbrancers,  and  the  third  incumbrancer,  at  the  time  of  his  incum- 
rance  and  payment  of  his  money,  had  no  notice  of  the  second  in- 
cumbrance, then,  if  the  first  mortgagee  or  incumbrancer  has  the  legal 
estate,  and  the  third  pays  him  off,  and  takes  an  assignment  of  his  se- 
curities and  a  conveyance  of  the  legal  estate,  he  is  entitled  to  tack  his 
third  mortgage  to  the  first  mortgage  which  he  has  acquired,  and  to  ex- 
clude the  intermediate  incumbrancer.  But  this  doctrine  is  limited  to 
the  case  where  the  first  mortgagee  has  the  legal  title,  for  if  the  first  mort- 
gagee has  not  the  legal  title,  the  third  does  not  by  the  transfer  obtain  the 
legal  title,  and  the  third  mortgagee  by  payment  ofl'  of  the  first  acquires 
no  priority  over  the  second. 


RICE  V.  RICE. 
In  Chancery,  before  Sir  Richard  Torin  Kindersley,  V.  C,  1853.^ 

[2  Drewry  73.] 

This  was  the  hearing  of  the  cause  on  a  motion  for  a  decree.  Michael 
Rice,  the  first  Defendant,  purchased  from  George  Rice,  E.  Moore  and 
his  wife,  Lydia  Rice  and  W.  Nail  and  his  wife,  certain  leasehold  prop- 
erty. On  the  execution  of  the  assignment  E.  Moore  received  his  share 
of  the  purchase-money;  but  no  money  was  received  by  the  other  vendors, 
who  allowed  the  pajTnent  to  stand  over  for  a  few  days  on  the  promise 
of  the  purchaser  then  to  pay.  However,  the  assignment  recited  the  pay- 
ment of  the  whole  purchase-money,  and  the  usual  receipt  was  endorsed 
on  it,  and  the  other  title  deeds  were  delivered  up  to  the  purchaser. 

The  flay  following  the  execution  of  the  deed,  Michael  Rice  deposited 

^Thf  principal  caso  will,  it  is  hoped,  confirm  the  foHowing  statement:  "He 
was  not  a  politician,  and  was  recommended  only  hy  his  deep  learning  and  sound- 
judgment."     Dictionary  JJiography,  Article,  Kindersley. 


CHAP.  IV.]  RICE  V.  RICE  335 

the  assignment  and  title  deeds  with  the  Defendants  Ede  and  Knight, 
with  a  memorandum  of  deposit,  to  secure  an  advance.  Rice  then  ab- 
sconded, without  paying  either  the  vendors  or  the  equitable  mortgagees. 

These  were  the  principal  facts  of  the  case.  The  other  material  cir- 
cumstances will  be  found  stated  in  the  judgment.  The  bill  was  for  pay- 
ment of  the  purchase-money,  or  for  sale  of  the  premises;  and  it  being 
admitted  that  there  was  not  enough  to  pay  both  the  vendors  and  the 
equitable  mortgagees,  the  question  in  the  cause  was,  which  ought  to  have 
priority,  the  vendors  or  the  equitable  mortgagees. 

The  VicK  Chancellor  took  time  to  consider,  and  on  the  12th  January 
delivered  the  following  judgment  :— 

The  question  to  be  decided  in  this  case  is,  whether  the  equitable  in- 
terest of  the  Plaintiffs  in  respect  of  the  vendor's  lien  for  unpaid  purchase 
money,  is  to  be  preferred  to  the  equitable  interest  of  the  Defendant  Ede 
as  equitable  mortgagee. 

What  is  a  rule  of  a  Court  of  Equity  for  determining  the  preference 
as  between  persons  having  adverse  equitable  interests?  The  rule  is  some- 
times expressed  in  this  form: — "As  between  persons  having  only  equit- 
able interests,  qui  prior  est  tempore  potior  est  jure."  This  is  an  in- 
correct statement  of  the  rule;  for  that  proposition  is  far  from  being 
universally  true.  In  fact  not  only  is  it  not  universally  true  as  between 
persons  having  only  equitable  interests,  but  it  is  not  universally  true 
even  where  their  equitable  interests  are  of  precisely  the  same  nature, 
and  in  that  respect  precisely  equal;  as  in  the  common  case  of  two  suc- 
cessive assignments  for  valuable  consideration  of  a  reversionary  interest 
in  stock  standing  in  the  names  of  trustees,  where  the  second  assignee 
has  given  notice,  and  the  first  hns  omitted  it. 

Another  form  of  stating  the  rule  is  this : — "As  between  persons  hav- 
ing only  equitable  interests,  if  their  equities  are  equal,  qui  prior  est 
tempore  potior  est  jure."  This  form  of  stating  the  rule  is  not  so  ob- 
viously incorrect  as  the  former.  And  yet  even  this  enunciation  of  the 
rule  (when  accurately  considered)  seems  to  me  to  involve  a  contradic- 
tion. For  when  we  talk  of  two  persons  having  equal  or  unequal  equi- 
ties, in  what  sense  do  we  use  the  term  "  equity  "  ?  For  example,  when 
we  say  that  A.  has  a  better  equity  than  B.,  what  is  meant  by  that  ?  It 
means  only  that  according  to  those  principles  of  right  and  justice  which 
a  Court  of  Equity  recognizes  and  acts  upon,  it  will  prefer  A.  to  B.,  and 
will  interfere  to  enforce  the  rights  of  A.  as  against  B.  And  therefore  it 
is  impossible  (strictly  speaking)  that  two  persons  should  have  equal 
equities,  except  in  a  case  in  which  a  Court  of  Equity  would  altogether 
refuse  to  lend  its  assistance  to  either  party  as  against  the  other.  If  the 
Court  will  interfere  to  enforce  the  right  of  one  against  the  other  on  any 
ground  whatever,  say  on  the  ground  of  priority  of  time,  how  can  it  be 
said  that  the  equities  of  the  two  are  equal;  i.  e.,  in  other  words,  how  can 
it  be  said  that  the  one  has  no  better  right  to  call  for  the  interference  of 
a  Court  of  Equity  than  the  other?    To  lay  down  the  rule  therefore  with 


336  RICE   V.  RICE  [part  i. 

perfect  accuracy,  I  think  it  should  be  stated  in  some  such  form  as  this : — 
"As  between  persons  having  only  equitable  interests,  if  their  equities 
are  in  all  other  respects  equal,  priority  of  time  gives  the  better  equity; 
or,  qui  prior  est  tempore  potior  est  jure." 

I  have  made  these  observations,  not  of  course  for  the  purpose  of  a 
mere  verbal  criticism  on  the  enunciation  of  a  rule,  but  in  order  to  as- 
certain and  illustrate  the  real  meaning  of  the  rule  itself.  And  I  think 
the  meaning  is  this:  that  in  a  contest  between  persons  having  only 
equitable  interests,  priority  of  time  is  the  ground  of  preference  last  re- 
sorted to ;  i.  e.  that  a  Court  of  Equity  will  not  prefer  the  one  to  the 
other,  on  the  mere  ground  of  priority  of  time,  until  it  finds  upon  an 
examination  of  their  relative  merits  that  there  is  no  other  sufficient 
ground  of  preference  between  them,  or  in  other  words  that  their  equi- 
ties are  in  all  other  respects  equal ;  and  that  if  the  one  has  on  other 
grounds  a  better  equity  than  the  other,  priority  of  time  is  immaterial. 

In  examining  into  the  relative  merits  (or  equities)  of  two  parties 
having  adverse  equitable  interests,  the  points  to  which  the  Court  must 
direct  its  attention  are  obviously  these :  the  nature  and  condition  of  their 
respective  equitable  interests,  the  circumstances  and  manner  of  their 
acquisition,  and  the  whole  conduct  of  each  party  with  respect  thereto. 
And  in  examining  into  these  points,  it  must  apply  the  test,  not  of  any 
technical  rule  or  any  rule  of  partial  application,  but  the  same  broad 
principles  of  right  and  justice  which  a  Court  of  Equity  applies  univer- 
sally in  deciding  upon  contested  rights. 

Now  in  the  present  case  each  of  the  parties  in  controversy  has  nothing 
but  an  equitable  interest ;  the  Plaintiffs'  interest  being  a  vendor's  lien 
for  unpaid  purchase  money,  and  the  Defendant  Ede  having  an  equitable 
mortgage.  Looking  at  these  two  species  of  equitable  interests  ab- 
stractedly, and  without  reference  to  priority  of  time,  or  possession  of 
the  title  deeds,  or  any  other  special  circumstances,  is  there  anything  in 
their  respective  natures  or  qualities  which  would  lead  to  the  conclusion 
that  in  natural  justice  the  one  is  better,  or  more  worthy,  or  more  en- 
titled to  protection  than  the  other? 

Each  of  the  two  equitable  interests  arises  out  of  the  forbearance 
by  the  party  of  money  due  to  him.  There  is,  however,  this  difference 
between  them,  that  the  vendor's  lien  for  unpaid  purchase-money  is  a 
right  created  by  a  rule  of  Equity,  without  any  special  contract;  the 
right  of  the  equitable  mortgagee  is  created  by  the  special  contract  of 
the  parties.  I  cannot  say  that  in  my  opinion  this  constitutes  any  suffi- 
cient ground  of  preference;  though  if  it  makes  any  difference  at  all,  I 
should  say  it  is  rather  in  favour  of  the  eqiiitable  mortgagee,  inasmuch 
as  there  is  no  constat  of  the  right  of  the  vendor  to  his  lien  for  unpaid 
purchase-money  until  it  has  been  declared  by  a  decree  of  a  Court  of 
Equity;  whereas  there  is  a  clear  constat  of  the  equitable  mortgagee's 
title  immediately  on  the  contract  being  made.  But  I  do  not  see  in  this 
any  sufficient  grounds  for  holding  that  the  equitable  mortgagee  has  the 


CHAP.  IV.]  KICE  V.  EICE  337 

better  equity.  So  far,  then,  as  relates  to  the  nature  and  quality  of  the 
two  equitable  interests  abstractedly  considered,  they  seem  to  me  to  stand 
on  an  equal  footing;  and  this  I  conceive  to  have  been  the  ground  of 
Lord  Eldon's  decision  in  Mackreth  v.  Symmons,  15  Ves.  329,  where,  in 
a  contest  between  the  vendor's  lien  for  unpaid  purchase-money  and  the 
right  of  a  person  who  had  subsequently  obtained  from  the  purchasers  a 
mere  contract  for  a  mortgage,  and  nothing  more,  he  decided  in  favour 
of  the  former,  as  being  prior  in  point  of  time. 

If,  then,  the  vendor's  lien  for  unpaid  purchase-money,  and  the  right 
of  an  equitable  mortgagee,  by  mere  contract  for  a  mortgage,  are  equitable 
interests  of  equal  worth  in  respect  of  their  abstract  nature  and  quality, 
is  there  any  thing  in  the  special  circumstances  of  the  present  case  to  give 
to  the  one  a  better  equity  than  the  other  ? 

One  special  circumstance  that  occurs  is  this,  that  the  equitable  mort- 
gagee has  the  possession  of  the  title  deeds.  The  question  therefore  arises, 
— Between  two  persons  having  equitable  interests  of  equal  worth,  does 
the  possession  of  the  title  deeds  by  one  of  them  give  him  the  better 
equity?  In  Foster  v.  Blachstotie,  1  Myl.  &  K.  307,  Sir  Jo/i??  Leach, 
M.  R.,  says, — "A  declaration  of  trust  of  an  outstanding  term,  accom- 
panied by  a  delivery  of  the  deeds  creating  and  continuing  the  term, 
gives  a  better  equity  than  a  mere  declaration  of  trust  to  a  prior  incum- 
brancer." That  is  a  case  in  which  the  two  parties  have  equitable  in- 
terests in  the  term  of  precisely  the  same  nature,  viz.,  a  declaration  of 
trust  of  the  term  without  an  actual  assignment;  and  there  the  delivery 
of  the  deeds  to  the  subsequent  incumbrancer  gives  him  the  better  equity. 
To  the  same  effect  is  the  decision  in  Stanhope  v.  Lord  Verney,  ac- 
cording to  Lord  St.  Leonards'  view  of  it,  as  reported  in  Butler's  Co. 
Litt.,  Page  290  b,  note  (1)  sect.  15,  (which  seems  a  more  satisfactory 
report  than  that  in  2  Eden,  Page  81.  Lord  St.  Leonards,  3  Sugd.  Vend. 
218,  states  it  thus: — "In  Stanhope  v.  Earl  Verney,  Lord  Northington 
held  that  a  declaration  of  trust  of  a  term  in  favour  of  a  person  was 
tantamount  to  an  actual  assignment,  unless  a  subsequent  incumbrancer, 
hond  fide  and  without  notice,  procured  an  assignment ;  and  that  the 
custody  of  the  deeds  respecting  the  term,  with  the  declaration  of  the 
trust  of  it  in  favour  of  a  second  incumbrancer,  was  equivalent  to  an 
actual  assignment  of  it,  and  therefore  gave  him  an  advantage  over  the 
first  incumbrancer  which  equity  could  not  take  from  him."  The  same 
doctrine  appears  to  be  recognized  by  Lord  Eldon  in  Maundrell  v.  M.,  10 
Ves.  271,  where  he  says,  "It  is  clear,  with  regard  to  mortgagees  and  in- 
cumbrancers, that  if  they  do  not  get  in  the  satisiied  term  in  some  sense, 
either  taking  an  assignment,  making  the  trustee  a  party  to  the  instru- 
ment or  iahing  possession  of  the  deed  creating  the  term,  that  term  can- 
not be  used  to  protect  them  against  any  person  having  mesne  charges 
or  incumbrances;"  implying  that  taking  possession  of  the  deed  creating 
the  term  would  confer  on  a  subsequent  incumbrancer  such  right  of  pro- 
tection by  means  of  the  term.    We  have  here,  then,  ample  authority  for 


338  KICE  V.  EICE  [paut  i. 

the  proposition,  or  rule  of  equity,  that  as  between  two  persons  whose 
equitable  interests  are  of  precisely  the  same  nature  and  quality,  and 
in  that  respect  precisely  equal,  the  possession  of  the  deeds  gives  the 
better  equity.  And,  applying  this  rule  to  the  present  case,  it  appears 
to  me  that  the  equitable  interests  of  the  two  parties  being  in  their 
nature  and  quality  of  equal  worth,  the  Defendant  having  possession  of 
the  deeds  has  the  better  equity;  and  that  there  is,  therefore,  in  this 
case  no  room  for  the  application  of  the  maxim  qui  prior  est  tempore 
potior  est  jure,  which  is  only  applicable  where  the  equities  of  the  two 
parties  are  in  all  other  respects  equal.  I  feel  all  the  more  confidence 
in  arriving  at  this  conclusion,  inasmuch  as  it  is  in  accordance  with  the 
opinion  expressed  by  Lord  St.  Leonards  in  his  work  on  Vendors  and 
Purchasers.  And  I  have  no  doubt  that  in  Machreth  v.  Symmons,  if  the 
equitable  mortgagee  had,  in  addition  to  his  contract  for  a  mortgage, 
obtained  the  title  deeds  from  his  mortgagor.  Lord  Eldon  would  have 
decided  in  his  favour. 

I  must  however  guard  against  the  supposition  that  I  mean  to  ex- 
press an  opinion  that  the  possession  of  title  deeds  will  in  all  cases  and 
under  all  circumstances  give  the  better  equity.  The  deeds  may  be  in 
the  possession  of  a  party  in  such  a  manner  and  under  such  circum- 
stances as  that  such  possession  will  confer  no  advantage  whatever.  For 
example,  in  Allen  v.  Knight,  5  Hare,  272,  (affirmed  by  the  Lord  Chan- 
cellor and  reported  on  appeal  in  11  Jur.,  Page  527),  the  deeds  had  beea 
delivered  to  the  first  equitable  mortgagee,  and  by  some  unexplained 
means  they  had  got  back  into  the  possession  of  the  mortgagor,  who  de- 
livered them  to  a  subsequent  equitable  mortgagee.  It  was  insisted  by 
the  latter  that  it  must  be  presumed  that  it  was  by  the  fault  or  neglect 
of  the  first  mortgagee  that  the  deeds  had  got  out  of  his  possession,  or  that 
at  all  events  the  Court  should  direct  an  enquiry  as  to  the  circumstances. 
But  the  Court  held  that  the  onus  lay  on  the  second  mortgagee  of  proving 
such  alleged  fault  or  neglect  of  the  first  mortgagee;  and  as  he  had  failed 
to  prove  it,  the  Court  could  not  presume  it.  nor  direct  an  enquiry  on 
the  subject;  and  decreed  in  favour  of  the  first  mortgagee.  I  think  it 
may  be  clearly  inferred  from  this  case  that  if  the  first  mortgagee  had 
never  had  the  deeds  delivered  to  him,  or  if  it  had  been  proved  that  the 
deeds  had  got  back  to  the  mortgagor  through  his  fault  or  neglect,  the  de- 
cision would  have  been  in  favour  of  the  second  mortgagee  who  had  the 
deeds.  So  the  deeds  may  have  come  into  the  hands  of  a  subsequent 
equitable  mortgagee  by  means  of  an  act  committed  by  another  person 
which  constituted  a  breach  of  an  express  t^ust  as  against  the  person 
having  the  prior  equitable  interest.  In  such  a  case  it  would  be  contrary 
to  the  principles  of  a  Court  of  Equity  to  allow  the  subsequent  mortgagee 
to  MVJiil  himself  of  the  injury  which  had  been  thus  done  to  the  party 
having  the  prior  etiiiitable  estate  or  interest. 

Indeed  it  appears  to  me  that  in  all  cases  of  contest  between  persons 
having  (•<iuit;il)le    intfjrcsts,    the  coiidiK-t  of  the  parties  and  all  the  cir- 


CHAP.  IV.]  EICE  V.  RICE  339 

cumstances  must  be  taken  into  consideration,  in  order  to  determine 
which  has  the  better  equity.  And  if  we  take  that  course  in  the  present 
case,  everything  seems  in  favour  of  the  Defendant  the  equitable  mort- 
gagee. The  vendors  when  they  sold  the  estate  chose  to  leave  part  of 
the  purchase  money  unpaid,  and  yet  executed  and  delivered  to  the  pur- 
chaser a  conveyance,  by  which  they  declared  in  the  most  solemn  and 
deliberate  manner,  both  in  the  body  and  by  receipt  indorsed,  that  the 
whole  purchase  money  had  been  duly  paid.  They  might  still  have  re- 
quired that  the  title  deeds  should  remain  in  their  custody,  with  a 
memorandum  by  way  of  equitable  mortgage  as  a  security  for  the  un- 
paid purchase  money,  and  if  they  had  done  so  they  would  have  been 
secure  against  any  subsequent  equitable  incumbrance;  but  that  they  did 
not  choose  to  do,  and  the  deeds  were  delivered  to  the  purchaser.  Thus 
they  voluntarily  armed  the  purchaser  with  the  means  of  dealing  with 
the  estate  as  the  absolute  legal  and  equitable  owner,  free  from  every 
shadow  of  incumbrance  or  adverse  equity.  In  truth  it  cannot  be  said 
that  the  purchaser  in  mortgaging  the  estate  by  the  deposit  of  the  deeds 
has  done  the  vendors  any  wrong,  for  he  has  only  done  that  which  the 
vendors  authorized  and  enabled  him  to  do.  The  Defendant,  who  after- 
wards took  a  mortgage,  was  in  effect  invited  and  encouraged  by  the 
vendors  to  rely  on  the  purchaser's  title.  They  had  in  effect  by  their 
acts  assured  the  mortgagee  that,  as  far  as  they  (the  vendors)  were  con- 
cerned, the  mortgagor  had  an  absolute  indefeasible  title  both  at  law 
and  in  equity. 

The  mortgagee  was  guilty  of  no  negligence;  he  was  perfectly  justified 
in  trusting  to  the  security  of  the  equitable  mortgage  by  deposit  of  the 
deeds,  without  the  slightest  obligation  to  go  and  inquire  of  the  vendors 
whether  they  had  received  all  their  purchase  money,  when  they  had  al- 
ready given  their  solemn  assurance  in  writing  that  they  had  received 
every  shilling  of  it,  and  had  conveyed  the  estate  and  delivered  over  the 
deeds;  and  I  do  not  think  that  the  fact  of  the  conveyance  bearing  date 
only  the  day  before  the  mortgage  imposed  on  him  any  such  obligation. 
The  Defendant  omitted  nothing  that  was  necessary  to  constitute  a  com- 
plete and  effectual  equitable  mortgage;  and  although  the  mortgage  was 
taken,  not  for  money  actually  advanced  at  the  time,  but  for  an  ante- 
cedent debt,  the  forbearance  of  that  debt  constitutes  a  full  and  sufficient 
valuable  consideration. 

Upon  a  comparison  then  of  the  conduct  of  the  two  parties  and  a 
consideration  of  all  the  circumstances  of  the  case,  and  especially  the 
fact  of  the  possession  of  the  deeds,  which  the  mortgagee  acquired  with 
perfect  hona  fides,  and  without  any  wrong  done  to  the  vendors,  I  am  of 
opinion  that  the  equity  of  the  mortgagee  is  far  better  than  that  of  the 
vendor,  and  ought  to  prevail. 

I  may  in  conclusion  venture  to  make  the  suggestion,  that  the  point 
now  under  consideration  is  often  put  by  text  writers  in  a  form  cal- 
culated to  mislead,  when  it  is  propounded  as  a  question  whether  the 


340  BASSET  v.  NOSWOKTHY  [part  i. 

vendor,  in  respect  of  his  lion  for  unpaid  purchase  money,  or  an  equit- 
able mortgagee,  ought  to  be  preferred;  or  when  an  opinion  is  expressed 
that  the  one  or  the  other  has  the  better  equity.  If  I  am  right  in  my 
view  of  the  matter,  neither  the  one  nor  the  other  has  necessarily  and 
nnder  all  circumstances  the  better  equity.  Their  equitable  interests, 
abstractedly  considered,  are  of  equal  value  in  respect  of  their  nature  and 
quality;  but  whether  their  equities  are  in  other  respects  equal,  or  whether 
the  one  or  the  other  has  acquired  the  better  equity,  must  depend  upon 
all  the  circumstances  of  each  particular  case,  and  especially  the  conduct 
of  the  respective  parties.  And  among  the  circumstances  which  may  give 
to  the  one  the  better  equity,  the  possession  of  the  title  deeds  is  a  very 
material  one.  But  if  after  a  close  examination  of  all  these  matters, 
there  appears  nothing  to  give  to  the  one  a  better  equity  than  the  other, 
then,  and  then  only,  resort  must  be  had  to  the  maxim  qui  prior  est 
tempore  potior  est  jure,  and  priority  of  time  then  gives  the  better  equity. 


J. — Where  the  Equities  are  Equal  the  Legal  Title  Prevails. 


BASSET  V.  NOSWOETHY. 

Ix  Chancery,  before  Lord  Keeper  Finch,  1673. 

\Reports  Temp.  Finch  102.]^ 

The  Plaintiff,  Sir  William  Basset,  intitled  himself,  as  Son  and  Heir 
of  Elizaheth  Seymour,  who  was  the  only  Daughter  and  Heir  of  Sir 
Joseph  Killegrew,  who  was  Brother  and  Heir  of  Sir  Henry  Killegrew , 
whose  Estate  the  Lands  in  the  Bill  mentioned  formerly  were;  the  De- 
fendant's Title  being  under  a  pretended  Purchase  (as  the  Plaintiff  al- 
Ifdged)  of  these  Lands  at  Drury-house,  and  under  the  Will  of  Sir  Henry 
Killigrew,  the  Purchase  being  from  Jane  Davis,  afterwards  the  Wife  of 
Mr.  Berkley,  and  from  Henry  Hill,  the  pretended  natural  Son  of  the  said 
Sir  Henry  Killigrew,  of  which  Will  the  Plaintiff  alledged  there  was 
a  Revocation  by  some  subsequent  Deed  or  Will;  and  for  a  Discovery 
thereof,  and  what  ]VIr.  Nosworthy  really  paid  for  the  Purchase,  and 
what  Deeds  and  Writings  he  had,  and  to  set  aside  the  Incumbrances 
wliifh  he  had  bought  to  protect  his  Purchase,  and  that  Mrs.  Seymour 
might  try  her  'I'itlo  at  Law  upon  the  supposed  Revocation  against  the 

'  »S'.  C.  2  White  and  Sudor's  Leading  Cases  in  Equity  pt.  1,  1,  with  notes. 


CHAP.  IV.]  BASSET  V.  NOSWORTHY  341 

Title  of  the  Defendant,  as  a  Purchaser  under  the  said  Will,  the  now 
Plaintiffs  exhibited  tliis  Bill: 

To  which  the  Defendant  pleaded  a  Dismission  of  a  Bill  in  the  Court 
of  Exchequer  signed  and  inrolled,  which  Bill  was  there  brought  for  the 
same  Matter  as  in  this  Bill,  and  fully  examined  and  dismissed  upon  a 
full  Hearing,  but  without  Prejudice,  and  the  Dismission  duly  signed 
and  inrolled;  and  he  farther  pleaded,  that  he  was  a  Purchaser  for  a 
valuable  Consideration,  bona  fide,  paid  without  Notice  of  any  Revo- 
cation. 

This  Cause  being  heard  by  the  Lord  Keeper  Bridgman,  he  ordered 
Precedents  to  be  searched,  where  a  Plaintiff,  after  a  Dismission  of  his 
Bill  on  a  judicial  and  formal  Hearing,  and  a  full  Examination  of  Wit- 
nesses in  one  Court  of  Equity,  {and  that  without  Prejudice)  had  ever 
been  admitted  in  another  Court  of  Equity',  to  examine  new  Witnesses  to 
the  same  Matter  formerly  in  Issue  and  examined. 

And  afterwards  there  being  several  Orders  made  in  this  Cause,  and 
one  by  which  the  Plea  was  over-ruled;  and  now  the  Cause  coming  to 
be  heard  by  the  Lord  Keeper  Nottingham,  who  having  read  the  Articles 
for  the  Defendant's  Purchase,  and  the  Conveyances,  Leases,  Fine  and 
Recovery,  which  appeared  to  be  made  before  any  Purchase  at  Drury- 
house,  and  having  considered  the  whole  Matter,  he  was  of  Opinion,  that 
the  Court  had  gone  much  out  of  the  Way,  and  that  the  Cause  had  been 
perplexed  with  several  extraordinary  Orders,  and  not  according  to  the 
usual  Course  of  Proceedings;  and  therefore  it  was  to  be  brought  back 
to  that  State  where  it  first  went  wrong. 

Whereupon  he  discharged  all  former  Orders  for  examining  Witnesses 
at  large,  and  confirmed  all  Examinations  to  the  Matter  of  the  Defend- 
ant's Plea,  which,  by  the  Justice  of  a  Court  of  Equity,  ought  to  con- 
clude the  Plaintiff,  unless  he  could  disprove  it;  and  a  Bill  of  the  same 
Nature  having  been  brought  in  the  Court  of  Exchequer,  and  there, 
after  a  full  Examination,  dismissed,  it  seemed  very  hard  that  the  Dis- 
mission iras  without  Prejudice,  because  no  cross  Bill  can  or  ought  to 
be  received  after  Publication,  to  examine  the  same  Witnesses  again,  for 
that  might  be  a  Means  to  introduce  Subornation  and  Perjury,  even  by 
the  Order  of  this  Court,  and  no  Precedents  can  be  found  to  warrant 
such  Practice. 

Therefore  the  Defendant  having  pleaded  this  Dismission  in  Bar  of 
any  farther  Examination,  and  that  he  is  a  Purchaser,  bona  fide,  without 
Notice  of  any  Revocation,  and  afterwards  for  the  Court  to  save  the 
Benefit  of  this  Plea,  by  Way  of  Answer,  and  yet  to  allow  an  Examina- 
tion to  the  whole  Matter,  which  had  been  pleaded,  in  Bar  to  such  examina- 
tion, (all  of  which  had  formerly  been  done  in  this  Cause)  was  in  Effect  to 
surprise  the  Defendant,  and  unawares  to  draw  him  off  from  that  which 
was  his  most  material  Defence. 

The  Cause  being  then  set  right  before  the  Court  upon  the  true  Merits 
thereof,  there  were  only  two  Points  which  were  considerable. 


342  BASSET  v.  NOSWOETIIY  [part  i. 

1.  What  the  Law  of  this  Court  is  concerning  Purchasers. 

2.  Whether  the  Defendant  was  a  Purchaser  within  that  Law. 

As  to  the  first  Point,  a  Purchaser,  bona  fide,  without  Notice  of  any 
Defect  in  his  Title  at  the  Time  of  the  Purchase  made,  may  lawfully  buy 
in  a  Statute  or  Mortgage,  or  any  other  Incumbrance;  and  if  he  can 
defend  himself  at  Law  by  any  such  Incumbrances  bought  in,  his  Ad- 
versary shall  never  be  aided  in  a  Court  of  Equity  by  setting  aside  such 
Incumbrances;  for  Equity  will  not  disarm  a  Purchaser,  but  assist  him; 
and  Precedents  of  this  Nature  are  very  ancient  and  numerous,  {viz.) 
where  the  Court  hath  refused  to  give  any  Assistance  against  a  purchaser 
either  to  an  Heir,  or  to  a  ^S'idow,  or  to  the  Fatherless,  or  to  Creditors, 
or  even  to  one  Purchaser  against  another. 

And  this  Rule,  in  a  Court  of  Equity,  is  agreeable  to  the  Wisdom  of 
the  Common  Law,  where  the  Maxims  which  refer  to  Descents,  Discon- 
tinuances, Nonclaims,  and  to  collateral  Warranties,  are  only  the  wise 
Arts  and  Intentions  of  the  Law  to  protect  the  Possession,  and  to 
strengthen  the  Rights  of  Purchasers. 

2.  As  to  the  second  Point  the  Court  declared,  that  the  Defendant 
had  sufficiently  proved  his  Plea,  and  himself  to  be  a  Purchaser  within 
the  Protection  of  this  Court,  because  no  Fraud  or  Circumvention  ap- 
peared; and  it  was  evident,  that  the  Defendant  had  paid  several  great 
Si;ms  to  discharge  Statutes,  which  incumbered  those  Lands,  over  and 
above  what  was  paid  to  Mrs.  Jane  BerHey  for  her  Estate  for  Life,  and 
to  Henry  Hill  for  his  Reversion;  and  tho'  the  Lands  were  proved  to 
be  of  much  greater  Value  at  this  Time,  by  the  falling  of  several  Lives, 
than  what  they  were  at  the  Time  of  the  Purchase,  yet  that  will  not 
alter  the  Case  in  Equity,  because  in  Purchases  the  Question  is  not, 
whether  the  Consideration  he  adequate,  hut  whether  'tis  valuahle;  for 
if  it  be  such  a  Consideration  as  will  make  the  Defendant  a  Purchaser 
within  the  Statute  21  Eliz.  and  bring  him  within  the  Protection  of 
that  Law,  he  ought  not  to  be  impeached  in  Equity. 

And  since  Henry  Hill  had  nothing  to  subsist  on  during  his  Minority 
but  this  Reversion,  and  being  a  Bastard  could  have  no  Kindred  by  the 
Law,  and  probably  but  few  Friends,  there  was  some  Hazard  of  the 
Money,  which  was  advanced  during  his  Minority,  if  he  died  before  the 
Fine  and  Recovery  suffered. 

Therefore  the  Court  allowed  the  Plea  and  dismissed  the  Rill,  and 
suppressed  all  the  Depositions  taken  in  this  Cause  before  April  last,  and 
all  since,  but  only  such  which  relate  to  this  Plea  of  the  Defendant. 


CHAP.  IV.]  SHERLr  V.  FAGG  343 

SHERLY  V.  FAGG. 
In  Chancery,  before  Lord  Chancellor  Clarendon,  1665.* 

[1  Cases  in  Chancery  08.]" 

The  plaintiff  by  liis  bill  made  title  to  the  lands  in  question  by  an  en- 
tail of  his  great-grandfather,  9  Jac.  whereby  the  premises  were  limited 
to  the  great-grandfather  for  life,  remainder  to  the  plaintiffs  grand- 
father by  name  for  life,  remainder  to  the  plaintiffs  father  by  name  for 
life,  remainder  to  the  first  son  (which  the  plaintiff  is)  and  other  sons  in 
tail,  and  shows  both  by  virtue  of  those  limitations  the  great-grand- 
father, grandfather  and  father  did  enjoy  during  their  respective  lives, 
and  the  plaintiffs  father  died  about  ten  years  since,  the  plaintiff  then 
an  infant  of  ten  years  old ;  and  that  the  plaintiff  ought  to  enjoy  by  that 
settlement.  And  the  bill  complained  that  Sir  John  Fagg  and  the  rest 
of  the  defendants  had  entered  into  several  parts  of  the  premises,  and 
did  divide  the  same  among  them,  having  gotten  the  evidence  and  the 
settlement,  and  did  conceal  the  same;  which  the  said  Sir  John  had 
gotten  into  his  hands  from  one  Walter,  for  a  reward  to  him,  or  other- 
wise; ^nd  he  had  altered  and  confounded  the  bounds  and  names  of  tho 
land ;  and  so  to  have  a  discovery  of  evidences,  and  the  deed  of  settle- 
ment, and  delivery  up  of  the  same,  was  the  scope  of  the  bill. 

The  defendant  Fagg  pleaded,  that  for  6870  I.  really  paid  to  the  Earl 
of  Thanet,  he  purchased  the  premises  of  him  by  good  conveyance  at 
law ;  and  demands  judgment,  whether  he  shall  further  discover  his  title, 
or  any  deeds  or  evidences  to  weaken  it'^  and  upon  long  debate,  after 
a  case  stated,  the  whole  court  was  of  opinion  that  the  plea  was  good.' 

*  Chief  Justice  Bridgnian  and  Judge  Archer  sat  with  his  lordship. 
^S.  C.  1  Eq.  Ca.  Ab.  354,  pi.  1. 

*  The  manner  in  wliich  the  defendant,  good  Sir  John,  secured  his  legal  title 
was  later  related  by  Lord  Chancellor  Nottingham  as  follows:  "Put 
them  in  mind  of  Sir  John  Fagg's  case,  which  the  defendant's  counsel  could 
not  remember  to  urge,  where  he  being  a  purchaser  came  into  a  man's  study, 
and  there  laid  hands  on  a  statute,  that  would  have  fallen  on  his  estate  and 
put  it  in  his  pocket;  and  in  that  case,  he  having  thereby  obtained  an  ad- 
vantage in  law,  though  so  unfairly  and  by  so  ill  a  practice,  the  court  would  not 
take  that  advantage  from  him."  Huniingion  v.  Greenville  (1682)  1  Vern. 
49,  51. 

"And  Culpepper^s  case  was  cited,  where  a  man  had  bought  gavelkind  land 
of  the  eldest  son,  and  paid  his  purchase  money,  without  knowledge  that  it 
was  gavelkind,  and  afterwards  for  a  song  bought  in  the  titles  of  the  younger 
brothers,  who  were  ignorant  of  their  titles,  yet  could  not  be  relieved  after- 
wards in  this  court:  the  purchaser  having  honestly  paid  his  money  without 
notice,  may  use  what  means  he  can  to  justify  his  title." — Sanders  v.  Deligne 
&  Barns   (1692)  Freeman's  Ch.  123,  124. 


344  EDMUNDS  v.  POVEY  [part  i. 


EDMUNDS  V.  POYEY. 

In  Chancery,  before  Lord  Keeper  North,  1683. 

[1   Vernon  187.] 

The  principal  question  in  this  case  was  touching  the  buying  in  of 
incumbrances,  viz.  where  there  are  first,  second,  and  third  mortgagees, 
who  had  all  lent  their  money  without  notice.  The  third  mortgagee 
hearing  of  the  two  former  securities  buys  in  the  first  incumbrance,  to  wit, 
a  judgment  that  was  satisfied:  and  it  was  strongly  insisted  at  the  bar, 
that  though  this  trade  of  buying  in  incumbrances  had  been  formerly 
countenanced  here,  yet  that  it  was  in  truth  a  thing  against  conscience, 
and  contradictory  to  many  established  rules  of  law  and  equity. 

But  after  long  debate  the  Lord  Keeper  told  them,  he  wondered  the 
counsel  laid  their  shoulders  to  a  point,  that  had  been  so  long  since  set- 
tled, and  received  as  the  constant  course  of  Chancery.  It  is  true,  there 
have  been  strong  arguments  used  against  the  unreasonableness  of  this 
practice,  and  there  might  be  likewise  strong  reasons  brought  for  the 
maintaining  of  it,  and  so  was  at  first  a  case  very  disputable;  but  being 
once  solemnly  settled,  as  it  was  in  the  case  of  Marsh  and  Lee,  1  Ch.  Ca. 
1G2,'  Vide  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms.  491,  and  cases 
cited  in  note  there,  he  would  not  now  suffer  that  point  to  be  stirred. 

The  counsel  in  their  own  justification  replied,  that  his  Lordship,  when 
this  cause  came  first  before  him,  had  referred  it  to  Sir  Adam  Ottley,  to 
state  the  case  specially,  and  it  now  came  before  him  on  the  master's 
report,  and  there  was  no  other  point  in  the  case  but  this;  and  therefore 
they  supposed  his  lordship  intended  they  should  be  at  liberty  to  speak 
to  that  matter. 

But  his  lordship  declared,  he  would  not  change  the  rule,  that  had  so 
long  prevailed,  in  this  case;  but  it  may  be,  he  might  do  so,  where  he 
found  a  man  designing  a  fraud,  and  thought  to  make  a  trade  of  cozen- 
ing by  the  rules  of  the  court. 

Serjeant  Pemherton  moved,  that  as  to  the  point  of  notice  he  sup- 
poscfl  his  lordship  meant,  that  a  man  that  buys  in  a  prior  incumbrance, 
must  do  it  without  notice  of  the  middle  incumbrance,  not  only  when  he 
lent  his  money,  but  also  at  the  time  when  he  bought  in  the  prior  incum- 
brance.    Sed.  nan  allocatur." 

'  Tho  report  of  this  case  contains  the  pleadings  and  the  points  raised  by 
hoth  piaintifT  and  (h'fendant.  At  the  end  of  the  case,  the  reporter  has  col- 
lected a  great  many  early  cases  on  the  questions  at  issue. 

'  For  a  collection  of  the  early  cases  involving  this  principle,  sec  Francis, 
Maxim-i  of  Ktjiiity  01  ct  acq. 


CHAP.  IV.]  CARTER  t;.  CARTER  345 

HAWKINS  V.  TAYLOR  and  LEIGH. 

In  Chancery,  before  Lord  Jefferys,  1687. 

[2   Vernon  29.] 

The  defendant  Leigh  having  an  incumbrance  on  the  lands  in  question 
subsequent  to  the  plaintiff's  and  the  bill  being  against  him  and  other 
incumbrances,  to  discover  their  incumbrances,  Vii'ilson,  who  was  a  de- 
fendant, and  had  the  first  incumbrance,  assigned  to  Leigh,  pendente  lite : 
and  the  question  at  the  hearing  was,  whether  the  defendant  Leigh,  who 
had  a  mortgage  subsequent  to  the  plaintiff's  should  help  himself  against 
the  plaintiff,  by  buying  in  Wilson's  incumbrance,  that  was  prior  to  both. 

The  Lord  Chancellor  conceived,  he  might  lawfully  do  so;  and  dis- 
missed the  plaintiff's  bill  without  costs.' 


Carter  v.  Carter  (1S57),  3  Kay  &  John.  617,  636. — Vice-Chancellor 
Sir  W.  Page  Wood: — *  *  *  Holding,  therefore,  as  I  do,  that  the 
whole  of  that  interest  passed,  and  that  James  Prosser  by  the  surrender 
and  admittance  acquired  the  legal  estate  in  fee  in  one  eighth  part  of 
the  copyholds  to  which  he  was  so  admitted,  the  really  serious  question, 
which  w-as  extremely  ably  argued  by  Mr.  James  is  this: — What  ought 

'  Prior  satisfied  claims  will  protect  a  subsequent  purchaser.  Stanton  v. 
Saddler  (1687)  2  Vcrn.  30  (a  satisfied  statute)  ;  Turner  v.  Richmond  (1688)  2 
Vent.  81    (a  satisfied  mortgage). 

"As  to  the  second  point  Lord  Rawlinson  was  of  opinion,  that  Sedgwick  as 
an  innocent  purchaser,  ought  to  have  the  advantage  of  all  his  securities  to 
defend  himself  at  law,  and  that  this  court  ought  not  to  take  any  advantage 
from  him;  and  said  he  would  consider  the  several  steps  that  this  court  had 
gone  in  favour  of  purchasers,  in  allowing  them  to  defend  themselves  by  any 
advantage  they  could  get  at  law;  that  where  a  purchaser  buys  in  an  old 
statute  or  mortgage,  though  nothing  be  due  upon  it,  he  shall  be  admitted  to 
defend  himself  by  it,  as  was  the  case  of  Higdcn  and  Calamy,  21  Car.  2,  and 
the  case  of  Wymonsel  and  Hawland,  May  1674,  and  many  cases  of  that  kind. 
The  next  step  has  been  that  purchasers  who  have  got  an  advantage  at  law, 
though  by  undue  means,  have  been  permitted  to  profit  by  it.  And  for  that 
purpose  cited  the  cases  of  Burnel  and  Ellis,  where  Ellis  had  got  the  deed  of 
rent-charge  into  his  hands:  and  22  Car.  2.  Sir  John  Fogg's  case,  who  got  the 
deed  of  entail  into  his  hands  by  a  trick:  and  the  case  of  Harcourt  and  Knoicel, 
where  a  release  was  obtained  from  a  grantee  of  a  rent  charge,  without  any 
consideration  and  by  fraud,  and  yet  a  purchaser  admitted  to  take  the  ad- 
vantage of  it;  and  the  case  of  Lord  Huntington  and  Greenville,  first  decreed  to 
protect  a  purchaser,  and  after  that  a  release  gained  from  an  administrator 
de  bonis  non:  and  the  case  of  Seybourne  and  Clifton  where  plaintiff  and  de- 


34G  CARTER  v.  CARTER  [part  i. 

to  be  the  result  of  his  thus  obtaining  the  legal  estate  accidentally  (if  I 
may  so  term  it),  and  certainly  without  notice  in  point  of  fact  of  the 
trusts  upon  which  the  legal  estate  was  held. 

In  considering  this  question,  I  have  had  occasion  to  look  through 
the  whole  class  of  authorities  with  reference  to  the  protection  which 
this  Court  affords  to  purchasers  without  notice.  The  cases  have  gone 
to  a  very  considerable  length  unquestionably — the  earlier  cases,  perhaps, 
to  a  greater  length  than  would  be  supported  by  more  modern  decisions. 
One  of  the  earlier  cases  is  cited  in  Vernon  as  Sir  John  Fagg's  case,  1 
Vern.  52,  53,  and  is  reported  in  1st  Chancery  Cases,  under  the  name  of 
Sherly  v.  Fagg,  1  Chanc.  Cas.  68.  Compare  2  Yern.  701,  n.  2,  but 
without  the  circumstances,  mentioned  in  the  narrative  of  the  case  in 
Vernon,  of  the  actual  fraud  which  appears  to  have  existed,  and  according 
to  whieli  the  case  is  an  authority  to  the  full  extent,  that  even  an  ad- 
vantage in  law,  he  was  protected  in  the  possession  of  that  deed.  The 
would  be  supported  in  order  to  maintain  his  title.  Vernon  in  narrating 
the  case,  states  that  Sir  John  Fagg,  being  a  purchaser,  came  into  a 
man's  study,  and  there  laid  hands  on  a  statute  that  would  have  fallen 
on  his  estate,  and  put  it  up  in  his  pocket — evidently  without  any  author- 
ity— in  fact  stole  it,  and  nevertheless,  having  thereby  obtained  an  ad- 
vantage in  law,  he  was  protected  in  the  possession  of  that  deed.  The 
facts,  as  to  how  he  obtained  possession  of  the  deed,  do  not  appear  as 
the  case  is  narrated  in  the  more  full  report  in  1st  Chancery  Cases,  and 

1  should  apprehend  it  is  sufficiently  clear,  that  a  case  to  such  an  ex- 
tent as  that  would  never  be  upheld. 

There  are  several  cases  in  Vernon  which  go  very  far — cases  some  of 
which  are  reported,  while  others  are  merely  referred  to  in  the  course 
of  the  discussion.  In  one,  there  was  clearly  no  title  existing  at  all,  as 
the  law  then  regarded  it,  the  title  being  merely  a  parliamentary  title 
during  the  usurpation.  Nevertheless,  the  purchaser  was  held  to  be  pro- 
tected; having  got  the  legal  estate,  he  was  not  interfered  with  by  this 
Court.     There  are  other  cases  of  that  description. 

An  early  case  occurs  in  Viner,  which  shews  the  great  length  to  which 
the  doctrine  has  been  carried.  It  is  that  of  Turner  v.  Biicli,  22  Vin. 
Abr.  21,  argued  by  Sir  Joseph  Jel-yll,  before  Lord  Cowper.  The  case 
is  narrated  very  shortly.  The  Defendant  had  i)urchased  of  a  person 
who  in  effect  was  held  to  be  in  possession  as  a  mere  disseisor.  He  had 
taken  a  conveyance  without  notice  of  any  other  title;  and  afterwards, 
the  disseisee  being  a  trustee,  the  cestui  que  trust  applied  to  this  Court 

fondant  had  each  of  thom  purchased  a  reversion,  expectant  on  the  death  of 
Iciiant  for  life,  the  j)laintifr's  bill  was  that  he  might  examine  his  witnesses 
to  [jresorve  their  testimony,  and  be  admitted  to  try  bis  title  in  the  life  time 
of  the  tenant  for  life;  but  forasmuch  as  the  purchaser  was  a  defendant,  tlie 
cnnrt  would  do  nothing  in  it,  but  dismissed  the  plaintiff's  bill,  and  he  lost  his 
la  ml    foi-   want   of  examining  his  witnesses." — Hitchcock  v.  Scdgicick    (IGOO) 

2  Vrrit.  ir,0,  158. 


CHAP.  IV.]  CARTER  V.  CARTER  347 

to  compel  the  disseisee,  his  trustee,  either  to  convey  to  him  the  lej^al 
estate — probably  it  would  bave  been  ditRcult  to  compel  a  conveyance  in 
consequence  of  its  being:  turned  to  a  mere  right  of  entry — or  to  proceed 
m  ejectment  to  recover  the  estate,  or  to  allow  him,  the  cestui  que  trust, 
to  proceed  in  his  name.  The  Court  refused  to  make  the  decree.  The 
Defendant  being  a  purchaser  without  notice,  the  Court  said  it  would 
not  give  relief  against  him  by  compelling  the  disseisee  to  take  any  of  the 
steps  in  question.  That  case  has  gone  as  far  as  any  I  can  find  deter- 
mined. 

There  ;ire  numerous  cases  in  which  persons,  purchasers  for  value,  and 
getting  possession  of  the  deeds  in  a  legitimate  manner,  have  been  held 
protected.  Wallwijn  v.  Lee,  9  Ves.  24,  was  a  case  of  that  kind.  There, 
a  mortgage  had  been  created  by  the  settlor,  who  was  simply  a  tenant 
ior  life  under  the  settlement,  and  after  his  death  the  tenant  in  tail  in 
possession  applied  to  this  Court  for  a  discovery  and  delivery  of  the  title 
deeds,  which,  he  insisted,  must  be  regarded  as  unduly  in  the  posses- 
sion of  the  mortgagee,  he  having  no  interest  in  the  estate.  But  Lord 
Eldon,  after  considerable  deliberation,  held  that  the  Court  would  not 
interfere  to  that  extent,  that  the  mortgagee  was  to  be  protected  in  the 
advantage  he  had  gained  by  obtaining  possession  of  the  deeds,  and 
that  no  course  could  be  taken  against  him,  inasmuch  as  he  was  a  pur- 
chaser for  valuable  consideration  without  notice. 

A  case  was  cited  before  in  argument,  where  a  good  many  of  the 
decisions  I  have  mentioned  may  be  found.  The  case  of  Jones  v.  Powles, 
8  Myl.  &  K.  581,  before  Sir  John  Leach,  which  was  a  case  of  the  gross- 
est description  as  regards  the  vendor.  The  vendor  had  forged  a  will 
and  sold  under  the  forged  title.  He  then  found  out  that  there  was  a 
satisfied  mortgage.  The  mortgage  having  been  satisfied,  the  mortgagee 
was.  of  course,  a  trustee  for  the  true  owner  of  the  estate.  The  vendor, 
who  knew  he  was  not  owner  of  the  estate,  procured  the  mortgagee  to 
convey  to  the  purchaser;  and  the  purchaser  under  that  instrument, 
who  originally  took  no  estate  or  interest,  was  held  nevertheless  to  be 
entitled  to  retain  the  estate.  Sir  John  Leach  laid  it  down  (and  T  ap- 
prehend that  he  did  not  exceed  the  authorities  referred  to  in  that  case 
Avhen  he  so  laid  it  down,)  that  a  purchaser  from  a  person  in  possession 
purchasing  without  notice  of  any  prior  charge  or  trust,  and  obtaining 
a  conveyance  of  the  legal  estate  from  the  trustee  of  a  satisfied  term  or 
the  mortgagee  of  a  satisfied  mortgage,  will  always  be  protected  in  this 
Court  against  a  prior  incumbrancer  or  cestui  que  trust,  subject  only 
to  one  observation  which  has  considerable  bearing  on  the  case  before 
me — an  observation  to  be  found  in  Lord  Eldon's  remarks  in  Maundrell 
V.  Maundrell,  10  Ves.  246,  and  repeated  by  him  in  Ex  parte  Knott,  11 
Ves.  609,  and  several  other  cases — which  is  this,  that  the  party  so  con- 
veying the  legal  estate  must  not  have  notice  of  an  express  prior  trust  or 
incumbrance.  On  looking  through  the  authorities,  you  find  that,  where 
a  conveyance  is  to  be  obtained  from  a  mortgagee  who  has  become  a 


348  CARTER  v.  CARTER  [part  i. 

constructive  trustee  by  the  mortgage  being  satisfied,  or  from  a  trustee 
of  a  term  to  attend  on  the  inheritance,  the  question  who  is  or  is  not 
entitled  to  the  equity  of  redemption  or  to  the  inheritance  may  be  a  ques- 
tion that  may  affect  him  as  to  the  conveyance  he  may  make;  but,  at 
the  same  time,  there  is  no  direct  notice  afforded  by  the  document  in 
the  hands  of  the  trustee  or  mortgagee  of  any  ulterior  trust  beyond  this, 
that  he  is  to  hold  for  the  persons  entitled.  In  MaundreU  v.  Maundrell 
and  again  in  Ex  parte  Knott,  Lord  Eldon  discusses  the  whole  doctrine, 
to  which,  he  says,  he  has  considerable  aversion,  and  searches  with  great 
jealousy  into  the  cases,  and  he  says  he  has  not  been  able  to  find  a  case 
where  a  person  being  a  mortgagee  without  notice  of  a  previous  incum- 
brance, has  been  held  to  be  entitled  to  obtain  from  the  trustee  of  an  out- 
standing legal  estate  the  conveyance  of  that  estate,  when  the  trustee 
himself  had  notice  of  the  intervening  incumbrance.  And  I  must  say, 
having  now  examined  a  great  number  of  authorities,  I  have  not  been 
able  to  find  a  case  of  that  discription,  I  speak  of  cases  where  it  is  a  dry 
trust — not  the  case  of  a  mortgagee  whose  mortgage  is  unsatisfied,  but 
the  dry  trust  of  a  satisfied  mortgage  or  a  satisfied  term  of  years  at- 
tending on  the  inheritance,  where  there  is  nothing  but  the  trust  re- 
maining to  be  performed.  There  are  several  cases  where  the  purchaser 
has  been  allowed  at  the  last  moment,  after  payment  in  full  and  up  to 
decree,  to  get  in  an  earlier  mortgage;  and  there  is  no  breach  of  duty 
in  a  person  assigning  his  mortgage  to  anybody  who  pays  him.  Any 
purchaser  is  entitled  to  hold  that  which,  without  breach  of  duty,  has 
been  conveyed  to  him.  But  the  case  put  by  Lord  Eldon  is  this : — Could 
the  purchaser  insist  on  any  benefit  to  be  derived  from  that  which  would 
be  a  breach  of  duty  or  breach  of  trust  in  the  trustee?  In  Ex  parte  Knott 
he  says,  "Surely,  if  the  purchaser  would  be  safe," — if  the  purchaser 
would  be  entitled  to  hold  the  estate  discharged  of  the  trust, — "the  trustee 
ought  to  be  so."  The  trustee  should  be  protected  in  the  act  which  he 
has  committed.  11  Ves.  614.  Whether  that  doctrine  will  ultimately 
be  held,  it  is  not  perhaps  important  for  me,  at  present,  to  say;  but 
I  must  say,  on  looking  through  a  vast  number  of  volumes  of  the  earlier 
and  later  authorities,  I  have  not  found  any  such  case  as  Lord  Eldon 
has  put — I  have  not  found  any  case  in  which  a  purchaser,  obtaining 
a  conveyance  of  a  mere  dry  trust  estate  from  a  trustee  of  a  satisfied 
term,  or  from  a  mortgagee  whose  mortgage  has  been  satisfied,  such 
trustee  or  mortgagee  having  at  the  time  when  he  made  the  conveyance 
notice  of  an  intervening  charge  or  trust,  has  been  held  entitled  to  pro- 
tect himself  from  such  charge  or  trust  by  means  of  the  legal  estate 
which  he  has  so  obtained. 

The  case  at  present  before  me  is  one  of  a  different  character  from  any 
case  to  be  found  throughout  the  authorities.  Mr.  James  says,  there  is 
in  substance  no  difference  between  the  case  before  me  and  that  of 
Jones  V.  Powles,  in  which  a  man  having  no  title  whatever,  or,  what  is 
worse,  having  himself  forged  the  title,  asks  the  holder  of  a  mortgaged 


CHAP.  IV.]  CARTER  V.  CARTER  •         349 

term,  when  tlie  mort{?age  has  been  satisfied,  to  convey  it  to  the  pur- 
chaser, and  yet  the  Court  gives  the  purchaser  the  benefit  of  that  term, 
when  it  is  clear  the  term  itself  is  only  held  for  the  benefit  of  those  en- 
titled to  the  inheritance.  But  hero,  the  purchaser  taking  the  convey- 
ance under  one  will,  supposed  by  all  parties  to  be  really  the  last  will  of 
the  testator,  finds  himself  driven  to  rely  ui)on  another  and  a  second 
will,  containing  on  the  face  of  it  all  the  trusts  which  the  testator  has 
created.  In  that  point  of  view,  I  certainly  have  found  no  case  analogous 
to  this.  The  case  cited  in  argument  of  SaiDideis  v.  Deheiv,  2  Vern.  271, 
is  a  case  of  a  different  description,  bearing  some  resemblance  to  the 
case  put  by  Lord  Eldon  in  Maundrell  v.  Maundrell.  In  Saunders  v. 
Deheiv,  it  was  held,  that,  although  it  had  then  long  been  settled,  that 
a  second  incumbrancer  has  a  right,  at  any  period,  however  long,  after 
notice  of  a  prior  incumbrance,  to  get  in  any  outstanding  estate  which 
can  be  bona  fide  assigned  to  him,  such  as  that  of  a  prior  mortgagee, 
whose  mortgage  he  pays  off,  and  who  has  no  notice  of  the  incumbrance; 
yet  he  cannot,  after  notice,  take  a  conveyance  of  a  legal  estate  held 
upon  express  trusts,  and  then  claim  to  jirotect  himself  thereby  from  the 
trusts  upon  which  it  is  so  held.  It  was  argued,  that,  having  no  notice 
of  those  trusts  at  the  time  of  making  the  advance,  no  notice  of  the  in- 
strument creating  the  trusts,  he  is  a  bona  fide  purchaser  without  notice 
for  valuable  consideration, — but  finding  that  there  are  such  trusts,  he 
gets  the  party  who  holds  the  trust  estate  to  hand  over  that  estate  to 
him: — a  case  very  similar  to  that  put  by  Lord  Eldon,  where  the  trustee, 
who  has  knowledge  who  is  his  cestui  que  trust,  makes  a  title  to  the 
purchaser  for  value.  But  it  was  held  that  a  transaction  of  that  kind 
x^ould  not  be  supported.  That  stands,  however,  on  different  grounds 
from  the  case  before  me,  inasmuch  as  it  would  be  a  fraudulent  com- 
bination of  the  two — the  purchaser  and  the  trustee.  The  purchaser, 
to  save  himself,  would  be  inducing  the  trustee  to  commit  a  fraudulent 
breach  of  trust. 

The  case  of  Saunders  v.  Deheiv  has  been  followed  in  a  case  of  Allen 
V.  Knight,  5  Hare,  272,  before  Vice-Chancellor  Wigi'am,  affirmed  on 
appeal  by  Lord  Cotlenharn,  11  Jurist,  527. 

That  is  the  extent  of  the  authorities  I  have  yet  found  on  the  subject 
resulting  in  this  distinction,  that  although  you  may  get  in  any  out- 
standing legal  estate  which  a  person  may  bona  fide  assign  to  you,  you 
having  notice  of  the  intervening  incumbrance,  he  not  having  any  such 
notice,  you  cannot  procure  a  conveyance  from  a  trustee  who  himself 
has  an  adverse  duty  to  perform,  and  who  by  such  a  conveyance  would, 
in  fact,  be  making  over  the  estate  to  you  to  protect  you  against  the 
very  interests  which  it  was  his  duty  to  protect.  That  is  so  rational, 
that  one  wonders  the  question  should  have  arisen  twice. 


350      BKACE  v.   DUCHESS  OF  MAELBOROUGH   [part  i. 

BRACE  V.   DUCHESS  OF  MARLBOROUGH. 

In  Chancery,  before  Sir  Joseph  Jekyll,  M.  R.,  1728, 

[2  Peere  Williams  491.] 

After  a  decree  which  referred  it  to  a  Master  to  state  the  several  in- 
cumbrances and  their  priority,  affecting  the  estate  of  Sir  William 
Gostwich,  this  case  arose:  A  puisne  judgment  creditor  bought  in  the 
first  mortgage  without  notice  of  the  second  mortgage  when  he  lent  his 
money  on  the  judgment,  and  the  question  was,  whether  this  puisne 
judgment  creditor  should  tack  and  unite  his  judgment  to  the  first  mort- 
gage, so  as  to  gain  a  preference  on  his  judgment  before  the  mesne 
mortgage?  And  the  Master  of  the  Rolls  on  considering  the  cases  and 
precedents,  held 

1st.  That  if  a  third  mortgagee  buys  in  the  first  mortgage,  tho'  it 
be  pendente  lite,  pending  a  bill  brought  by  the  second  mortgagee  to 
redeem  the  first,  yet  the  third  mortgagee  having  obtained  the  first  mort- 
gage and  got  the  law  on  his  side,  and  equal  equity,  he  shall  thereby 
squeeze  out  the  second  mortgage;  and  this  the  Lord  Chief  Justice  Hale 
called  a  planh  gained  by  the  third  mortgagee,  or  tabula  in  naufragio, 
which  construction  is  in  favour  of  a  purchaser,  every  mortgage  being 
such  pro  tanto. 

2dly,  If  a  judgment  creditor,  or  creditor  by  statute  or  recognizance, 
buys  in  the  first  mortgage,  he  shall  not  tack  or  unite  this  to  his  judg- 
ment, &c.  and  thereby  gain  a  preference;  for  one  cannot  call  a  judg- 
ment, &c.  creditor,  a  purchaser,  nor  has  such  creditor  any  right  to  the 
lands;  he  has  neither  jus  in  re,  nor  ad  rem,  and  therefore,  tho'  he  re- 
leases all  his  right  to  the  land  he  may  extend  it  afterwards.  All  that 
he  has  by  the  judgment  is  a  lien  upon  the  land,  but  nonconstat  whether 
he  ever  will  make  use  thereof;  for  he  may  recover  the  debt  out  of  the 
goods  of  the  cognizor  by  fieri  facias,  or  may  take  the  body,  and  then 
during  the  defendant's  life  he  can  have  no  other  execution;  besides,  the 
judgment  creditor  does  not  lend  his  money  upon  the  immediate  view 
or  contemplation  of  the  cognizor's  real  estate,  for  the  land  afterwards 
purchased  may  be  extended  on  the  judgment,  nor  is  he  deceived  or  de- 
frauded, tho'  the  cognizor  of  the  judgment  had  before  made  twenty 
mortgages  of  all  his  real  estate,  whereas  a  mortgagee  is  defrauded  or 
deceived  if  the  mortgagor  before  that  time  mortgaged  his  land  to 
another;  and  'tis  such  a  fraud  as  the  parliament  takes  notice  of,  and 
punishes  by  foreclosing  such  mortgagor  who  mortgages  his  land  a  sec- 
ond time,  without  giving  notice  of  the  first  mortgage,  and  in  that  re- 
spect this  case  differs  from  a  puisne  mortgagee's  buying  in  the  first 
mortgage. 

?>dly,     Tho'  tlic  rule  of  equity  has  been  so  settled,  it  is  not  however 


CHAP.  IV.]      BEACE  V.  DUCPIESS  OF  MAELBOROUGH  351 

without  great  apiiearance  of  hardship;  for  still  it  seems  reasonable  that 
each  mortgagee  should  be  paid  according  to  his  priority,  and  hard  to 
leave  a  second  mortgagee  without  remedy,  who  might  know  when  he 
lent  his  money,  that  the  land  was  of  sufficient  value  to  pay  the  first 
mortgage,  and  also  his  own ;  to  be  defeated  of  a  just  debt,  by  a  matter 
inter  alios  acta,  a  contrivance  betwixt  the  first  mortgagee  and  the  third, 
is  great  severity;  but  this  has  been  settled  upon  solemn  debate  in  a  case 
in  2  Vent.  3i7.  Marsh  versus  Lee,  wherein  that  great  man  Sir  Mathew 
Hale  (then  (^hief  Baron)  was  called  by  the  Lord  Chancellor  to  his  as- 
sistance; though  this  be  settled,  there  can  be  no  reason  to  carry  it  far- 
ther, to  a  case  not  within  the  same  reason,  to  a  case  where  the  lender 
of  the  money  does  not  advance  it  upon  the  immediate  credit  of  the  land ; 
no  precedents  go  so  far,  being  all  of  them  where  a  puisne  mortgagee  buys, 
in  a  first  mortgage,  not  where  a  puisne  creditor  by  judgment,  statute,  or 
recognizance  does  so,  as  appears  from  the  case  cited  of  Marsh  versus  Lee, 
reported  also  in  1  Chan.  Cases  162.  So  in  1  Chan.  Cases  149.  Higgon  &  aV 
versus  Si/ddal,  Callamy  &  aV  where  Si/ddal  seized  in  fee  of  land,  granted  a 
rent-charge  of  300  I.  per  annum  for  2000  I.  to  the  plaintiff,  and  afterwards 
mortgaged  the  premises  for  1200  I.  to  Callamy,  who  bought  in  a  judg- 
ment precedent  to  the  grant  of  the  rent-charge,  there  the  mortgagee  of 
the  land  having  no  notice  of  the  rent-charge,  when  he  lent  his  money 
upon  the  mortgage,  the  grantee  of  the  rent-charge  was  decreed  to  have 
no  remedy  in  equity  against  the  judgment,  unless  he  would  pay  both 
the  mortgage  and  the  judgment;  tho'  it  is  to  be  observed  in  that  case, 
the  judgment  creditor,  who  was  the  first  incumbrancer,  could  at  law 
extend  but  a  moiety,  and  out  of  the  remaining  moiety  the  grantee  of  the 
rent-charge  might  distrain  for  the  whole  rent;  but  it  seems,  that  if  the 
first  incumbrance  had  been  a  statute-staple,  and  the  third  mortgagee  had 
bought  it  in,  he  should  have  had  the  whole  land,  until  at  law  the  cog- 
nizor  of  the  statute  by  a  feire  facias  ad  computandum  had  got  the 
statute  vacated,  and  that  could  only  be  on  payment  of  the  penalty;  for 
equity  would  not  in  such  case  have  given  any  assistance  against  a  third 
mortgagee  without  notice,  until  he  was  paid  his  mortgage  as  well  as 
statute.  So  note  a  diversity  where  a  third  mortgagee  buys  in  a  statute 
which  is  the  first  incumbrance,  and  where  a  statute  creditor,  &c.  being 
the  third  incumbrancer,  buys  in  the  first  mortgage;  in  the  latter  case 
the  statute  or  judgment  creditor,  because  he  did  not  lend  his  money  on 
the  credit  of  the  land,  shall  not  unite  the  first  mortgage  to  his  statute 
or  judgment;  but  in  the  former,  as  the  land  was  in  the  view  and  con- 
templation of  the  lender,  he  shall  be  allowed  to  imite  the  statute  to  his 
third  mortgage.  So  in  1  Vern.  187.  Edmunds  versus  Povcy,  there  was 
a  first,  second  and  third  mortgage  without  notice,  and  the  third  mort- 
gagee bought  in  a  judgment  prior  indeed  to  all,  but  it  was  satisfied, 
and  the  first  mortgagee  bringing  his  bill  to  be  relieved  against  this 
judgment.  Lord  Keeper  North  would  not  allow  it  to  be  so  much  as  de- 
bated, but  took  it  to  be  settled  in  the  above  cited  case  of  Marsh  versus 


352       BEACE   v.  DUCHESS   OF   MAELBOROUGH  [part  i. 

Lee,  and  not  then  to  be  disputed;  tho'  his  Lordship  admitted  that  it 
was  at  first  a  very  disputable  case,  and  very  strong  arguments  and  rea- 
sons had  been  urged  on  the  other  side. 

Athly,  If  a  first  mortgagee  lends  a  further  sum  to  the  mortgagor  upon 
a  statute  or  judgment,  he  shall  retain  against  a  mesne  mortgagee,  till 
both  the  mortgage,  and  statute,  or  judgment  be  paid;  because  it  is  to 
be  presumed  that  he  lent  his  money  upon  the  statute  or  judgment,  as 
knowing  he  had  hold  of  the  land  by  the  mortgage,  and  in  confideiace 
ventured  a  farther  sum  on  a  security,  which,  tho'  it  past  no  present  in- 
terest in  the  land,  yet  must  be  admitted  to  be  a  lien  thereon, 

5thly,  If  a  puisne  mortgagee  without  notice  buys  in  a  prior  judg- 
ment or  statute,  and  that  judgment,  &c.  be  extended  upon  an  elegit  at 
a  value  much  under  the  real,  the  mesne  mortgagee  shall  not  make  the 
puisne  mortgagee,  who  has  got  in  this  judgment,  account  otherwise,  or 
for  more  than  the  extended  value;  nor  will  this  court  give  any  relief 
against  the  judgment  or  statute,  but  leave  the  mesne  mortgagee  to  get 
rid  of  them  as  well  as  he  can  at  law. 

But,  Qthly,  his  Honor  said,  in  all  these  cases  it  must  be  intended,  that 
the  puisne  mortgagee,  when  he  lent  his  money,  had  no  notice  of  the 
second  mortgage,  statute  or  judgment,  for  that  was  the  sole  equity;  and 
therefore  in  the  principal  case  where  the  creditor  by  recognizance  who 
bought  in  the  first  mortgage,  did  not  in  his  answer  deny  notice,  tho' 
such  notice  was  not  charged  in  the  bill  (which  was  here  brought  by  some 
puisne  incumbrancers  for  a  sale,  and  upon  bill  and  answers  first  a  de- 
cree to  state  the  several  incumbrances,  then  a  report,  and  thereupon  a 
farther  decree  was  obtained  for  the  Master  to  state  the  value  of  the 
land  mortgaged  to  each  of  the  mortgagees)  yet  after  all  these  proceed- 
ings for  a  puisne  judg-ment,  &c.  creditor,  to  insist  upon  his  having  had 
no  notice,  and  offering  to  be  examined  vipon  interrogatories  was  not  suf- 
ficient; but  this  denying  of  notice  ought  to  appear  on  the  pleadings, 
whereupon  the  parties  might  go  to  issue,  and  have  an  opportunity  of 
proving  notice;  and  therefore  tho'  it  were  true  that  a  puisne  judgment 
creditor  buying  in  a  first  mortgage,  should  in  such  case  unite  it  to  the 
judgment,  (which  was  clearly  otherwise)  yet  here  the  puisne  judgment 
creditor  came  too  late,  it  being  a  case  not  to  be  favoured,  and  in  a  cause 
very  much  intangled,  which,  if  such  indulgencies  were  to  be  given  to 
the  puisne  judgment  creditor,  would  never  have  an  end. 


CHAP.  IV.]  FIRE  INS.  COMPANY  i;.  WHIPP  353 


NORTHERN  COUNTIES  OF  ENGLAND  FIRE  INSURANCE 
COMPANY  V.'  WHIPP. 

In  tiik  Supreme  Court  of  Judicature,  Chancery  Division,  1884. 

[Laiv  Reports,  26  Chancery  Division  482.]  ' 

One  Crahtree,  who  was  manager  of  the  Plaintiff  company,  executed 
a  legal  mortgage  of  his  freehold  for  £4500  to  the  company,  delivered  the 
title  deeds  to  them,  and  received  the  money.  The  deeds  were  placed  in 
the  company's  safe,  of  which  Crahtree  had  a  duplicate  key.  Crahtree 
took  the  deeds  out  of  the  safe,  mortgaged  the  property  to  Mrs.  Wliipy, 
who  liad  no  notice  of  the  company's  mortgage,  and  handed  over  the 
deeds,  Crahtree  went  into  liquidation.  The  liquidator  commenced,  in 
the  name  of  the  company,  this  action  against  Mrs.  Whipp  and  Crabtree's 
trustee  in  liquidation,  for  foreclosure.  The  trustee  disclaiming,  the 
action  was  dismissed  as  against  him.  Mrs.  Whipp  put  in  a  defence  and 
a  counterclaim,  by  which  she  asked  that  the  securities  of  the  Plaintiff 
company  might  be  declared  fraudulent  and  void  as  against  her,  or  in  the 
alternative  that  they  might  be  postponed  to  her  security,  and  that  the 
company  might  be  ordered  to  convey  the  property  to  her,  subject  only  to 
such  equity  of  redemption  as  it  was  subject  to  under  her  mortgage. 

From  a  judgment  postponing  its  rights,  the  company  appealed.'' 

1884.  April  3.  The  judgment  of  the  Court  (Cotton,  Bowen,  and  Fry, 
L.J  J.)  was  now  delivered  by  Fry,  L.J.,  who  after  shortly  stating  the 
facts  as  to  the  securities  in  the  same  terms  as  above,  proceeded  as 
follows : — 

The  Plaintiffs  being  possessed  of  mortgages  earlier  in  date  than  the 
mortgage  of  the  Defendant,  and,  under  these  instruments,  being  the 
owners  of  the  legal  estate,  are  prima  facie  entitled  to  priority  over  the 
Defendant,  but  the  Defendant  seeks  to  postpone  the  Plaintiff's  legal 
estate  on  various  grounds. 

The  main  contention  on  the  part  of  the  Defendant,  which  succeeded  in 
the  Court  below,  was  that  by  reason  of  the  negligent  conduct  of  the 
Plaintiffs,  after  they  had  taken  their  mortgages,  these  securities  ought 
to  be  postponed  to  the  security  of  the  Defendant ;  and  this  point  has  been 
argued  at  such  length  and  with  so  extensive  a  reference  to  the  authori- 
ties, that  it  appears  to  us  necessary  to  consider  the  matter  fully. 

The  question  which  has  thus  to  be  investigated  is — What  conduct  in 
relation  to  the  title  deeds  on  the  part  of  a  mortgagee  ^vho  has  the  legal 
estate,  is  sufficient  to  postpone  such  mortgagee  in  favour  of  a  subsequent 
equitable  mortgagee  who  has  obtained  the  title  deeds  without  knowl- 
edge of  the  legal  mortgage?     The  question  is  not  what  circumstances 

'  /S.  C.  Brett's  Leading  Cafies  in  Modern  Equity  249  icith  note. 
'The  statement  of  facts  is  abridged. 


354  FIEE  INS.  COMPANY  v.  WHIPP  [part  i. 

may  as  between  two  equities  give  priority  to  the  one  over  the  other,  but 
what  circumstances  justify  the  Court  in  depriving  a  legal  mortgagee  of 
the  benefit  of  the  legal  estate.  It  has  been  contended  on  the  part  of  the 
Plaintiffs  that  nothing  short  of  fraud  will  justify  the  Court  in  post- 
poning the  legal  estate.  It  has  been  contended  by  the  Defendant  that 
gross  negligence  Is  enough. 

The  eases  which  assist  In  answering  the  question  thus  raised  will  be 
found  to  fall  into  two  categories — (1),  those  which  relate  to  the  conduct 
of  the  legal  mortgagee  in  not  obtaining  possession  of  the  title  deeds; 
(2),  those  which  relate  to  the  conduct  of  the  legal  mortgagee  in  giving 
up  or  not  retaining  the  possession  of  the  title  deeds  after  he  has  obtained 
them.  The  two  classes  of  cases  will  not  be  found  to  differ  in  the  prin- 
ciples by  which  they  are  to  be  governed,  but  they  do  differ  much  in  the 
kind  of  fraud  which  is  to  be  most  naturally  looked  for. 

In  the  case  of  a  person  taking  the  legal  estate,  and  not  seeking  for  or 
obtaining  the  title  deeds  from  the  mortgagor,  the  question  may  arise 
between  the  legal  mortgagee  and  either  a  prior  or  a  subsequent  incum- 
brancer or  purchaser.  But  in  such  transactioii  the  fraud  about  which 
the  Courts  are  most  solicitous  is  that  which  is  practised  when  a  man 
takes  the  legal  estate  with  knowledge  of  a  prior  equitable  sale  or  incum- 
brance, and  yet  strives  to  place  himself  in  a  position  to  show  that  he 
took  without  notice — that  kind  of  fraud  which  Lord  HardwicTce  ex- 
plained in  Le  Neve  v.  Le  Neve,  Amb.  436,  445,  when  he  said: — "The 
taking  of  a  legal  estate  after  notice  of  a  prior  right,  makes  a  person  a 
mala  fide  purchaser.  *  *  *  This  is  a  species  of  fraud,  and  dolus 
malus  itself;  for  he  knew  the  first  purchaser  had  the  clear  right  of  the 
estate,  and  after  knowing  that,  he  takes  away  the  right  of  another  person 
by  getting  the  legal  estate." 

On  the  other  hand,  when  the  legal  mortgagee  has  obtained  the  posses- 
sion of  the  title  deeds  and  subsequently  gives  them  up,  no  question  can 
arise  between  him  and  a  prior  equitable  owner,  and  no  suspicion  of  the 
particular  fraud  which  we  have  referred  to  can  arise;  the  estate  of  the 
legal  mortgagee  can  never  be  improved  by  any  subsequent  dealings  with 
the  deeds,  and  therefore,  before  the  Court  can  find  a  fraudulent  intent  in 
the  legal  mortgagee,  it  must  be  shewn  that  he  concurred  in  some  project 
to  enable  the  mortgagor  to  defraud  a  subsequent  mortgagee,  or  that  he 
was  a  party  or  privy  to  some  other  fraud  in  fact.  The  kind  of  fraud 
most  to  be  looked  for  in  this  class  of  cases  is  such  as  was  described  by  the 
Lord  Chancellor,  Lord  Cowper,  in  the  case  of  the  Thatched  House,  when 
he  said,  1  Eq.  Ca.  Ahr.  322: — "If  a  man  makes  a  mortgage  and  after- 
wards mortgages  the  same  estate  to  another,  and  the  first  mort- 
gagee is  in  combination  to  induce  the  second  mortgagee  to  lend  his 
money,  this  fraud  will  without  doubt  in  equity  postpone  his  own  mort- 
gage. So  if  such  mortgagee  stands  by  and  sees  another  lending  money 
on  the  same  estate  without  giving  him  notice  of  his  first  mortgage,  this 
is  such  a  misprision  as  shall  forfeit  his  priority." 


CHAP.  IV.]  FIKE  INS.  COMPANY  v.  WHIPP  355 

On  the  head  of  huv  now  under  consideration  the  observations  of  Lord 
Eldon  in  giving  judgment  in  the  case  of  Evans  v.  Bichnell,  6  Ves.  174, 
are  without  doubt  tlie  leading  authority.  That  case  is  remarkable  for 
several  reasons,  and  not  the  least  so  because  it  is  the  leading  authority 
on  a  point  which  did  not  naturally  arise  in  it.  In  that  case  a  settlement 
had  been  made  on  the  marriage  of  Stansell  and  his  wife,  the  defendant 
Bicknell  being  the  trustee  of  the  settlement,  and  as  such  having  posses- 
sion of  the  title  deeds.  Bicknell  had  delivered  the  deeds  to  Stansell,  and 
Stansell  having  obtained  the  deeds  mortgaged  the  property  to  the  plain- 
tiffs and  delivered  to  them  the  deeds.  The  plaintiffs  alleged  that 
Bicknell  so  delivered  the  deeds  to  assist  Stansell  in  his  fraud.  Bicknell, 
on  the  contrary,  alleged  and  swore  that  he  did  it  to  enable  Stansell  to 
obtain  credit  in  his  trade  by  shewing  that  his  wife  was  tenant  for  life 
of  the  property;  and  the  real  question  for  decision  was  whether 
Bicknell  could,  on  the  ground  of  his  alleged  participation  in  Stansell's 
fraud,  be  made  liable  for  the  difference  between  the  value  of  Stansell's 
life  interest  under  the  settlement  and  the  amount  of  the  plaintiff's  mort- 
gage. In  considering  this  point  the  Lord  Chancellor  was  led  to  discuss 
the  question  of  postponing  the  legal  estate  on  the  ground  of  conduct.  It 
is,  we  think,  impossible  to  read  the  judgment  and  not  to  come  to  the  con- 
clusion that  Lord  Eldon  considered  that  the  same  fraud  and  the  same 
kind  of  negligence  which  would  support  a  suit  for  personal  relief  would 
justify  the  postponement  of  the  legal  estate,  and  that  nothing  less  would 
have  that  effect.  Having  referred  to  the  evidence  of  the  principal  wit- 
ness, Lord  Eldon  said,  6  Ves.  189 :  "  I  still  entertain  great  doubt, 
Avhether  upon  such  a  transaction  a  party  should  be  charged  personally; 
for  even  upon  that  it  amounts  to  no  more  than  that  a  trustee  delivers 
the  deeds  into  the  hands  of  a  party,  who  has  the  settlement.  I  do  not 
say,  it  is  not  negligence ;  but  it  is  too  dangerous  upon  such  loose  evidence 
to  hold,  that  it  is  that  gross  negligence,  that  amounts  to  evidence  of 
fraud." 

The  Lord  Chancellor  then  turned  to  consider  a  judgment  in  which  Mr. 
Justice  Buller  had  erroneously  affirmed  that  it  Avas  an  established  rule 
in  equity  that  a  second  mortgagee  who  has  the  title  deeds  without  notice 
should  be  preferred,  and  after  adverting  to  his  mistake  observed,  6  Yes. 
190 :  "  The  doctrine  at  last  is,  that  the  mere  circumstance  of  parting 
with  the  title  deeds,  unless  there  is  fraud,  concealment,  or  some  such 
purpose,  or  some  concurrence  in  such  purpose,  or  that  gross  negligence, 
that  amounts  to  evidence  of  a  fraudulent  intention,  is  not  of  itself  a 
sufficient  groimd  to  postpone  the  first  mortgagee." 

The  expression  "  gross  negligence  that  amounts  to  evidence  of  a  fraud- 
ulent intention "  is  certainly  embarrassing,  for  negligence  is  the  not 
doing  of  something  from  carelessness  and  want  of  thought  or  attention; 
whereas  a  fraudulent  intention  is  a  design  to  commit  some  fraud,  and 
leads  men  to  do  or  omit  doing  a  thing  not  carelessly  but  for  a  purpose. 
But  Lord  Eldon  seems  to  have  meant  by  his  words  to  describe  the  not 


35G  FIRE  INS.  COMPANY  v.  WIIIPP  [part  i. 

doing  of  something,  so  ordinarily  done  by  honest  men  under  the  given 
circumstances,  as  to  be  really  attributable  not  to  negligence  or  careless- 
ness, but  to  a  fraudulent  intention.  In  short,  it  appears  to  us  that  in  the 
mouth  of  Lord  Eldon  the  word  "  negligence  "  was  used  simply  to  express 
non-feasance. 

In  a  subsequent  passage  of  his  judgment  the  Lord  Chancellor  varies 
the  form  of  his  language,  but  without  throwing  any  fresh  light  on  his 
meaning.  In  one  place,  6  Ves.  191,  he  speaks  of  "  negligence  so  gross  as 
to  amount  to  fraud,"  which  seems  like  speaking  of  carelessness  so  great 
as  to  amount  to  design ;  in  another  place,  Ihid.  192,  of  "  negligence  so 
gross  as  to  amount  to  constructive  fraud;"  and  again,  Ihid.  193,  of  a 
''  circumstance  of  so  gross  negligence  *  *  *  that  it  is  conclusive 
evidence  of  fraud." 

In  the  subsequent  case  of  Martinez  v.  Cooper,  2  Russ.  198,  217,  Lord 
Eldon  referred  to  Evans  v.  Bichnell,  6  Ves.  174,  as  having  settled  the 
principle,  which  he  again  expresses  in  nearly  similar  language.  "  There 
must  be,"  he  says,  "  either  direct  fraud,  or  negligence  amounting  to  evi- 
dence of  fraud,  to  induce  this  Court  to  interfere  for  the  purpose  of  post- 
poning a  party  who  insists  on  the  legal  benefit  of  his  deed."  All  this 
language  of  Lord  Eldon,  though  loose  and  difficult  to  construe,  appears 
to  us  to  point  to  fraud,  as  the  necessary  conclusion  before  the  Court  can 
deprive  the  owner  of  the  legal  estate  of  his  legal  rights  derived  from  that 
estate.  This  fraud,  no  doubt,  may  be  arrived  at  either  by  direct  evidence 
or  by  evidence  circumstantial  and  indirect,  and  it  does  not  cease  to  be 
fraud,  because  the  particular  object  in  contemplation  of  the  parties  may 
have  been  a  fraud  in  some  respects  different  from  the  fraud  actually  ac- 
complished ;  or  because  the  person  intended  to  have  been  defrauded  may 
be  different  from  the  person  actually  defrauded;  or  because  the  original 
fraudulent  intention  had  no  particular  person  in  view:  See  Bechett  v. 
Cordley,  1  Bro.  C.  C.  353,  and  per  Lord  Eldon  in  Evans  v.  Bicknell,  6 
Ves.  192. 

That  fraud  and  fraud  alone  was  the  ground  for  postponing  the  legal 
estate  was,  we  think,  the  opinion  of  Lord  Hardivicke  in  Le  Neve  v.  Le 
Neve,  Amh.  436,  447.  "  Fraud,  or  mala  fides,  therefore,"  he  said,  "  is  the 
true  ground  on  which  the  Court  is  governed  in  the  cases  of  notice." 

That  Sir  William  Grant  entertained  the  same  view,  and  considered  it 
as  the  result  of  Evans  v.  Bichnell,  6  Ves.  174,  is  apparent  from  his  obser- 
vations in  Barnett  v.  Weston,  12  Ves.  130,  133,  where  he  said  that  the 
old  cases  for  postponing  the  first  mortgagee  had  been  shaken  unless  a 
case  of  fraud  could  be  made  out.* 

That  Lord  Justice  James  adopted  the  same  rule  is  plain  from  what  he 
said  in  the  case  of  Rntcliffe  v.  Barnard,  Law  Rep.  6  Ch.  652.  "  The  legal 
mortgagee  must,"  ho  said,  "  have  boon  guilty  of  fraud,  or  of  that  wilful 
negligence  which  leads  the  Court  to  conclude  that  he  is  an  accomplice  in 
the  fraud  " 

From  this  consensus  of  expression  as  to  the  true  rule,  some  departure 


CHAP.  IV.]  FIKE  INS.  COMPANY  v.  WHIPP  357 

is  said  by  the  learned  counsel  for  the  Defendant  to  have  occurred  in  the 
language  used  by  Lord  Cranworth,  L.  C,  in  the  case  of  Colyer  v.  Finch, 
5  //.  L.  C.  905,  and  of  Roberts  v.  Croft,  2  De  G.  k  J.  1.  It  is  enough  to 
say  that  in  our  opinion  the  Lord  Chancellor  plainly  intended  in  both  of 
these  cases  to  lay  down  no  new  principle,  and  his  use  of  the  expression 
''  negligence  so  gross  as  to  be  tantamount  to  a  fraud,"  and  his  emphatic 
reliance  on  the  cases  of  Evans  v.  Bicknell  and  Martinez  v.  Cooper,  2 
Buss.  198,  in  his  judgment  in  Colyer  v.  Finch  are  sufficient  evidence  of 
this  intention. 

Turning  now  to  the  decisions,  mostly  subsequent  to  that  of  Evans  v. 
Bicknell,  which  have  been  cited  in  argument,  it  will  be  found  that  the 
cases  which  have  arisen  on  the  conduct  of  the  mortgagee  in  not  obtain- 
ing possession  of  the  title  deeds  may  be  ranged  in  the  following  classes : — 

(L)  Where  the  legal  mortgagee  or  purchaser  has  made  no  inquiry  for 
the  title  deeds  and  has  been  postponed,  either  to  a  prior  equitable  estate 
as  in  ]Vorthingto7i  v.  Morgan,  16  Sim..  547,  or  to  a  subsequent  equitable 
owner  who  used  diligence  in  inquiring  for  the  title  deeds,  as  in  Clarke  v. 
Palmer,  21  Ch.  D.  124.  In  these  cases  the  Courts  have  considered  the 
conduct  of  the  mortgagee  in  making  no  inquiry  to  be  evidence  of  the 
fraudulent  intent  to  escape  notice  of  a  prior  equity,  and  in  the  latter  case 
that  a  subsequent  mortgagee,  who  was,  in  fact,  misled  by  the  mortgagor 
taking  advantage  of  the  conduct  of  the  legal  mortgagee,  could  as  against 
him  take  advantage  of  the  fraudulent  intent. 

(2.)  Where  the  legal  mortgagee  has  made  inquiry  for  the  deeds  and 
has  received  a  reasonable  excuse  for  their  non-delivery,  and  has  accord- 
ingly not  lost  his  priority,  as  in  Barnett  v.  Weston,  12  Ves.  130;  Hewitt 
V.  Loosemore,  9  Hare,  449;  Agra  Bank  v.  Barry,  Law  Rep.  7  H.  L.  135. 

(3.)  Where  the  legal  mortgagee  has  received  part  of  the  deeds  under  a 
reasonable  belief  that  he  was  receiving  all  and  has  accordingly  not  lost 
his  priority,  as  in  Hunt  v.  Elmes,  2  D.  F.  &  J.  578,  Ratcliffe  v.  Barnard, 
Law  Rep.  6  Ch.  652,  and  Colyer  v.  Fitich,  5  H.  L.  C.  905. 

(4.)  Where  the  legal  mortgagee  has  left  the  deeds  in  the  hands  of 
the  mortgagor  with  authority  to  deal  with  them  for  the  purpose  of  his 
raising  money  on  security  of  the  estate,  and  he  has  exceeded  the  col- 
lateral instructions  given  to  him.  In  these  cases  the  legal  mortgagee  has 
been  postponed,  as  in  Perry-Herrick  v.  Attwood,  2  De  G.  &  J.  21.  This 
case  was  decided  not  on  the  ground  that  the  legal  mortgagees  had  been 
guilty  of  fraud,  but  on  the  ground  that  as  they  had  left  the  deeds  in  the 
hands  of  the  mortgagor  for  the  purpose  of  raising  money,  they  could  not 
insist,  as  against  those  who  in  reliance  on  the  deeds  lent  their  money, 
that  the  mortgagor  had  exceeded  his  authority. 

The  cases  where  the  mortgagee  having  received  the  deeds  has  sub- 
sequently parted  with  them,  or  suffered  them  to  fall  into  the  hands  of  the 
mortgagor,  will  be  found  to  fall  into  the  following  classes: — 

(1.)  Wliere  the  title  deeds  have  been  lent  by  the  legal  mortgagee  to 
the  mortgagor  upon  a  reasonable  representation  made  by  him  as  to  the 


358  FIEE  mS.  COMPANY  v.  WIIIPP  [part  i. 

object  in  borrowing  them,  and  the  legal  mortgagee  has  retained  his 
priority  over  the  subsequent  equities,  as  Peter  v.  Russel,  or  Thatched 
House  Case,  1  Eq.  Ca.  Ahr.  321;  Martinez  v.  Cooper,  2  Russ.  198. 

(2.)  Wlaere  the  legal  mortgagee  has  returned  the  deeds  to  the  mort- 
gagor for  the  express  purpose  of  raising  money  on  them,  though  with  the 
expectation  that  he  would  disclose  the  existence  of  the  prior  security  to 
any  second  mortgagee:  Briggs  v.  Jones,  Law  Rep.  10  Eq.  92.  In  such 
cases  the  Court  has,  on  the  ground  of  authority,  iiostponed  the  legal  to 
the  equitable  estate.  This  is  the  same  in  principle  as  the  decision  in 
Perry-Herrick  v.  Attwood,  2  De  G.  &  J.  21. 

No  case  has  been  cited  in  which  the  legal  mortgagee  has  (as  by  the 
Vice- Chancellor  in  this  case)  been  postponed  by  reason  of  negligence 
in  the  custody  of  the  deeds. 

The  decisions  on  negligence  at  common  law  have  been  pressed  on  us 
in  the  present  case,  but  it  appears  to  us  enough  to  observe,  that  the  ac- 
tion at  law  for  negligence  imports  the  existence  of  a  duty  on  the  part  of 
the  defendant  to  the  plaintiff,  and  a  loss  suffered  as  a  direct  consequence 
of  the  breach  of  such  duty;  and  that  in  the  present  case  it  is  impossible 
to  find  any  duty  undertaken  by  the  Plaintiff  company  to  the  Defendant, 
Mrs.  Whipp.  The  case  was  argued  as  if  the  legal  owner  of  land  owed  a 
duty  to  all  other  of  Her  Majesty's  subjects  to  keep  his  title  deeds  secure; 
as  if  title  deeds  were  in  the  eye  of  the  law  analogous  to  fierce  dogs  or 
destructive  elements,  where  from  the  nature  of  the  thing  the  Courts  have 
implied  a  general  duty  of  safe  custody  on  the  part  of  the  person  having 
their  possession  or  control.  This  view  is  in  our  opinion  impliedly  nega- 
tived by  the  whole  course  of  decisions,  and  it  is  expressly  repelled  by  the 
observations  of  the  present  Lord  Chancellor  in  Agra  Banh  v.  Barry, 
Law  Rep.  7  H.  L.  157,  where  he  said,  "  It  has  been  said  in  argument  that 
investigation  of  title  and  inquiry  after  deeds  is  '  the  duty '  of  a  pur- 
chaser or  a  mortgagee;  and,  no  doubt,  there  are  authorities  (not  involv- 
ing any  question  of  registry),  which  do  use  that  language.  But  this,  if 
it  can  properly  be  called  a  duty,  is  not  a  duty  owing  to  the  possible  holder 
of  a  latent  title  or  security.  It  is  merely  the  course  which  a  man  dealing 
hond  fide  in  the  proper  and  usual  manner  for  his  own  interest,  ought, 
by  himself  or  his  solicitor,  to  follow,  with  a  view  to  his  own  title  and  his 
own  security.  If  he  does  not  follow  that  course,  the  omission  of  it  may  be  a 
thing  requiring  to  be  accounted  for  or  explained.  It  may  be  evidence,  if  it 
is  not  explained,  of  a  design,  inconsistent  with  hond  fide  dealing,  to  avoid 
knowledge  of  the  true  state  of  the  title.  What  is  a  sufficient  explanation, 
must  always  be  a  question  to  be  decided  with  reference  to  the  nature  and 
circumstances  of  each  particular  case."  These  observations  appear  to  us 
conclusive  gn  the  point,  and  they  at  the  same  time  suggest  the  conclu- 
sion, tlijit  if  in  iiny  case  it  shall  appear  that  a  prior  legal  mortgagee  has 
undertaken  any  duty  as  to  the  custody  of  the  deeds  towards  any  given 
person,  and  has  neglected  to  perform  that  duty  with  due  care,  and  has 
thereby  injured  the  person  to  whom  the  duty  was  owed,  there  the  legal 


CHAP.  IV.]  FIRE  INS.  COMPANY  v.  WIIIPP  359 

estate  might  bo  postponed  by  reason  of  the  negligence.  But  no  such  case 
appears  as  yet  to  have  arisen,  nor  does  it  seem  one  likely  often  to  occur. 
The  point  certainly  does  not  arise  in  the  present  case,  and  we  therefore 
give  no  ojjinion  upon  it. 

The  authorities  which  we  have  reviewed  appear  to  us  to  justify  the 
following  conclusions : — 

(1)  That  the  Court  will  postpone  the  prior  legal  estate  to  a  sub- 
sequent ecjuitable  estate:  (a),  where  the  owner  of  the  legal  estate  has 
assisted  in  or  connived  at  the  fraud  which  has  led  to  the  creation  of  a 
subsequent  equitable  estate,  without  notice  of  the  prior  legal  estate;  of 
which  assistance  or  connivance,  the  omission  to  use  ordinary  care  in  in- 
quiry after  or  keeping  title  deeds  may  be,  and  in  some  cases  has  been, 
held  to  be  sufficient  evidence,  where  such  conduct  cannot  otherwise  be 
explained;  (h),  where  the  owner  of  the  legal  estate  has  constituted  the 
mortgagor  his  agent  with  authority  to  raise  money,  and  the  estate  thus 
■created  has  by  the  fraud  or  misconduct  of  the  agent  been  represented 
as  being  the  first  estate. 

But  (2)  that  the  Court  will  not  postpone  the  prior  legal  estate  to  the 
subsequent  equitable  estate  on  the  ground  of  any  mere  carelessness  or 
want  of  prudence  on  the  part  of  the  legal  owner. 

Now  to  apply  the  conclusions  thus  arrived  at  to  the  facts  of  the  pres- 
■ent  case.  That  there  was  great  carelessness  in  the  manner  in  which  the 
Plaintiff  company  through  its  directors  dealt  with  their  securities  seems 
to  us  to  admit  of  no  doubt.  But  is  that  carelessness  evidence  of  any 
fraud?  We  think  that  it  is  not.  Of  what  fraud  is  it  evidence?  The 
Plaintiffs  never  combined  with  Crabtree  to  induce  the  Defendant  to  lend 
her  money.  They  never  knew  that  she  was  lending  it,  and  stood  hj. 
They  can  have  had  no  motive  to  desire  that  their  deeds  should  be  ab- 
stracted and  their  own  title  clouded.  Their  carelessness  may  be  called 
gross,  but  in  our  judgment  it  was  carelessness  likely  to  injure  and  not  to 
benefit  the  Plaintiff  company,  and  accordinglj'-  has  no  tendency  to  con- 
vict them  of  fraud. 

Then  comes  the  inquiry  whether  the  Plaintiff  company  constituted 
Crabtree  their  agent  to  raise  money,  in  which  case  the  Defendant  might 
I)enefit  the  Plaintiff  company,  and  accordingly  has  no  tendency  to  con- 
tention was,  in  our  opinion,  the  possession  by  Crabtree  of  the  key.  But 
the  Defendant  has  not  proved  the  circumstances  attending  this  fact,  or 
the  duties  for  the  performance  of  which  the  key  may  have  been  essential, 
with  sufficient  distinctness  to  enable  us  to  conclude  from  the  possession 
of  the  key  tlwit  it  implied  an  authority  to  deal  with  the  securities  of  the 
Plaintiff  company.  The  cases  in  which  Crabtree  did  so  deal  with  the 
securities,  when  carefully  considered,  appear  to  us  insufficient  to  support 
the  authority  claimed;  and  the  fact  that  Crabtree  in  dealing  with  the 
Defendant  suppressed  his  mortgage  to  the  company  and  dealt  with  her, 
not  as  agent  of  the  company  having  an  authority  to  pledge  its  securities, 
))ut  as  the  unencumbered  owner  of  the  property,  goes,  we  think,  far  to 


360  FIEE  INS.  COMPANY   v.  WIIIPP  [part  i. 

negative  the  suggested   authority.     On   this  point,   therefore,  we  agree 
with  the  Vice-Chancellor.     *     *     * 

Differing  as  we  do  from  the  learned  Vice-Chancellor  on  the  one  point 
on  which  he  decided  against  the  Plaintiffs,  we  conclude  that  his  judg- 
ment must  be  discharged,  and  that  instead  of  it  the  Court  must  declare 
the  Plaintiffs  entitled  to  priority  and  give  the  usual  consequent  relief. 
The  Plaintiffs  must  add  to  their  security  so  much  of  the  costs  of  the  ac- 
tion in  the  Court  below  as  would  have  been  incurred  if  the  action  had 
been  a  simple  action  for  foreclosure  and  no  question  of  priority  had  bet;n 
raised,  and  the  Defendant  must  pay  to  the  Plaintiffs  the  residue  of  the 
Plaintiffs'  costs  in  the  Court  below  and  the  whole  of  the  costs  of  the 
appeal.^ 

^  "A  good  illustration  of  the  effect  which  equity  gives  to  the  acquisition 
of  the  legal  title  in  those  eases  in  which  the  equities  are  equal,  is  afforded  by 
Thorndike  v.  Hunt  [(1859)  3  Dc  G.  &  J.  563].  There  a  trustee  under  two 
3ifferent  settlements,  having  misappropriated  the  funds  of  one,  replaced  them 
by  a  transfer  of  funds  belonging  to  the  other.  In  a  suit  instituted  by  a 
cestiu  que  trust  under  the  first  settlement,  the  trustee  transferred  the  money 
into  court,  and  the  money  was  treated  as  belonging  to  that  estate,  the  legal 
title  consequently  resting  in  the  accountant  general  for  the  purpose  of  that 
trust.  The  question  was  whether  the  cestui  que  trust  under  the  second  set- 
tlement had  a  right  to  follow  this  fund,  and  it  was  held  that  he  had  not, 
because  the  transfer  being  without  notice  and  for  value  (i.  e,  in  discharge 
of  the  debt  due  by  the  defaulting  trustee)  the  cestui  que  trust  under  the  first 
settlement  had  just  as  strong  an  equity  to  retain  the  fund  as  the  cestui  que 
trust  under  the  second  settlement  had  to  follow  it;  and  it  therefore  followed 
that  the  circumstances  of  the  legal  title  being  held  by  the  accountant  general 
for  the  former  was  enough  to  create  a  preference  in  his  favor." — Bispham, 
Principles  of  Equity  §  40. 

"This  maxim  [equal  equities,  the  legal  title  will  prevail]  and  the  one  ex- 
amined in  the  last  preceding  section  [equal  equities,  first  in  order  of  time 
prevails]  must  be  taken  in  connection,  in  order  to  constitute  the  enunciation 
of  a  complete  principle.  The  first  applies  to  a  certain  condition  of  facts;  the 
other  supplements  its  operation  l)y  applying  to  additional  facts  by  which 
equitable  rights  and  duties  may  be  affected.  The  two  are  in  fact  counterparts 
of  each  other,  and  taken  together  they  form  the  source  of  the  doctrines,  in 
their  entire  scope,  concerning  priorities,  notice,  and  purchasers  for  a  valuable 
consideration   and   without    notice." — Pomeroy,    Equity  Jurisprudence    §    410. 

And  see  2  Spcnce,  Jurisdiction  of  the  Court  of  Chancery  720  ct  seq. 


CHAP.  IV.]  NELTIIROr  v.  HILL  3G1 


K. — Equality  is  Equity. 


NELTIIKOP  V.  HILL. 

In  Chancery,  before  Lord  Keeper  Bridgman,  1669.^ 

[1   Cases  in   Chanceri/   135.] 

This  cause  was  heard  first  before  the  Lord  Keeper.  The  case.  The 
plaintiff  Margaret  and  the  defendant  Anne  were  the  two  daughters  of 
Smith,  who  having  made  his  will  eighteen  years  since;  and  Hill,  ex- 
ecutor and  curator  of  the  children  (both  then  in  infancy)  by  his  will 
gave  several  legacies,  and  then  gave  the  residue  of  his  personal  estate  to 
be  equally  divided  between  his  two  daughters,  Anne  and  Margaret ;  and 
if  both  die  before  marriage  or  full  age,  then  he  deviseth  it  over  to  an- 
other. Biscoe  raarrieth  Anne  the  eldest  sister,  and  then  one  moiety  of 
the  estate,  which  was  good,  and  in  the  hands  of  the  executor,  is  paid  to 
Biscoe  and  his  wife,  and  Biscoe  settles  a  jointure  for  this  on  his  wife, 
and  gives  the  executor  a  discharge. 

Afterwards  the  executor  puts  out  the  other  moiety  (Margaret  being 
still  in  minority)  on  security,  and  part  of  it  is  lost.  Then  Margaret  mar- 
ries Nelthrop,  and  they  bring  this  bill  against  the  executor  and  Biscoe 
and  his  wife  to  have  a  contribution  towards  the  loss  borne  by  them,  and 
to  have  Biscoe  refund. 

Upon  the  first  hearing  it  was  so  decreed,  unless  Biscoe  showed  prece- 
dents to  the  contrary. 

Now  upon  farther  hearing  this  day,  (viz.  10  Jan.  1669,)  before  the 
Lord  Keeper,  Mr.  Jus.  Wild  and  Mr.  Baron  Turner,  it  was  for  Biscoe 
insisted,  that  by  the  marriage  of  Anne,  her  moiety  became  dvie,  and  the 
devise  over  is  defeated:  so  that  if  Biscoe  and  his  wife  had  brought  their 
bill  for  it,  the  executor  could  not  have  denied  payment  of  it,  and  so 
Biscoe  hath  done  no  default,  who  hath  not  his  money  till  due,  and  he  is 
not  concerned  to  look  any  farther;  and  in  lieu  of  the  portion  a  jointure 
is  made,  and  a  release  for  the  legacy  is  given ;  and  probably,  if  the  ex- 
ecutor would  not  have  paid,  Anne  might  have  lost  her  preferment,  and 
the  executor  was  by  the  will  the  curator  of  the  children.  And  it  was 
said,  that  by  Anne's  marriage  first,  she  became  first  entitled.  And  it  was 
insisted,  that  where  legacies  are  payable  at  several  times,  and  the  legacy 
that  is  first  due  is  paid  when  due,  and  there  is  money  in  the  executor's 
hands  to  pay  the  other  legacies,  that  if  a  loss  fall  on  that  afterwards, 
there  is  equity  in  that  case  to  put  the  first  paid  legatee  to  refund. 

For  the  plaintiff  it  was  insisted,  that  there  was  in  this  case  no  time 

^  Justice  Windham  and  Baron  Turner  sat  with  the  Lord  Keeper. 


362  NELTIIROP  v.  HILL  [part  i. 

limited  for  payment  of  either;  and  that  by  the  marriage  of  Anne,  the 
devise  over  being  defeated,  both  became  due  and  payable,  the  devise  be- 
ing indefinite,  without  any  express  time  of  payment;  and  the  plaintiff 
Margaret's  infancy  ought  not  to  turn  to  her  prejudice;  and  that  it  was 
the  testator's  intention  that  they  should  have  it  equally,  one  as  much  as 
the  other.  And  if  Biscoe  had  sued,  the  executor  might  have  required 
security  to  refund. 

And  it  was  said  and  admitted  by  the  court,  that  if  executors  pay  out 
the  assets  in  legacies,  and  afterwards  debts  appear,  and  they  be  forced  to 
pay  them,  of  which  they  had  no  notice  before  the  legacies  paid,  that  the 
executors  by  a  bill  here  might  force  the  legatees  to  refund.' 

But  as  to  that  it  was  answered,  that  case  was  not  like  to  this ;  for  there 
was  not  enough  to  pay  all  when  the  legacies  were  paid,  but  here  was 
enough  when  the  legacies  were  paid  to  pay  all,  and  the  loss  since. 

And  for  the  plaintiff  it  was  farther  insisted,  that  a  division  could  not 
be  made  without  the  plaintiff  Margaret  called  to  it;  and  the  case  of 
Grove  and  Sanson  insisted  on,  where  Banson  had  a  conveyance  and 
statute  for  his  wife's  legacy,  and  yet  put  to  refund. 

But  as  to  that  case  it  was  answered,  there  was  not  any  payment,  but 
a  security,  and  by  that  he  would  have  had  a  redemption ;  so  this  payment 
was  not  paid,  but  executory.  And  the  plaintiff  cited  the  case  of  Picks 
and  Vincner  upon  Sir  Henry  Martin's  certificate,  which  was  29  Oct. 
1639,  and  was  in  substance  thus:  that  an  executor  may  not  pay  one,  if 
he  hath  not  enough  to  pay  all;  and  an  executor  is  not  bound  to  pay  a 
legacy  without  security  to  refund  if  there  be  want  of  assets  to  pay  either 
debts  or  legacies.  Which  was  not,  as  is  said,  to  this  purpose,  there  being 
at  the  time  when  this  legacy  was  paid,  enough  to  pay  all. 

Ordered  the  cause  be  set  down  to  be  re-heard  originally,  as  well 
against  the  executor,  as  the  legatee  Biscoe  and  his  wife. 

Quoore,  if  there  be  not  a  difference  between  debts  and  legacies  thus: 

^  Lord  Chancellor  [Nottingham].  "There  is  a  difference  between  a  suit 
for  a  legacy  in  this  court,  and  a  suit  for  a  legacy  in  the  Spiritual  Court.  If 
in  the  Spiritual  Court  they  would  compel  an  executor  to  pay  a  legacy  with- 
out security  to  refund,  there  shall  go  a  prohibition,  as  was  resolved  in  the 
case  of  Kni<,'l)t  niid  Clarke;  but  in  this  court,  though  there  be  no  provision 
f()7-  icfunding,  yet  the  commcn  justice  of  this  court  will  compel  a  legatee  to 
rcfmiil.  It  is  certain  thnt  a  creditor  shall  compel  a  legatee  to  refund,  and 
so  sliall  one  legatee  compel  the  other,  where  the  assets  become  deficient;  but 
wheilier  the  executor  himself,  after  he  has  once  voluntarily  assented  unto  a 
legafv.  shall  coinpel  tlie  legatee  to  refund,  is  causa  primae  impresKionis: 
and  it  nmst  be  admitted  there  is  a  great  difference  between  a  voluntary 
assent,  and  where  the  executor  was  compelled  to  assent.  We  know  the  com- 
mon case,  if  a  man  voluntarily  pays  money  to  a  bankrupt,  after  he  becomes 
a  bankrupt,  it  is  in  his  own  wrong,  and  he  may  be  forced  to  pay  it  again;  but 
otherwise  it  is,  if  the  bankrupt  recover  it  against  him  by  course  of  law;  and 
a  small  matter  may  amf)unt  to  an  assent  to  a  legacy;  an  assent  being  but 
a  rightful  act."     Noel  v.  Robinson,  1082,  1  Vcrn.  90,  93. 


CHAP.  IV.]  ANONIMOUS  303 

debts  may  appear  to  the  executors,  but  legacies  appear  in  the  will?  and 
qucere,  if  therefore  executors  be  not  bound  more  strictly  to  take  security 
against  legacies  that  do  appear,  than  debts  that  do  not?' 


BEOWN  V.  ALLEN. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1681. 

[1   Vernon  31.] 

It  was  declared  by  the  Lord  Chancellor,  that  where  a  man  devises  a 
specific  legacy,  there  though  the  other  legacies  fall  short,  yet  the  legatee 
must  have  his  specific  legacy  entire:  But  where  a  man  devises  several 
legacies,  as  1001.  to  one,  and  501.  to  another,  &c.  there  although  he 
directs  the  legacy  of  100?.  to  be  paid  m  the  first  place,  yet  if  the  other 
legacies  fall  short,  there  the  legatee  of  the  100?.  must  make  a  proportion- 
able abatement  of  his  legacy. 


ANONIMOUS. 

In  Chancery,  before  Lord  Keeper  North,  1683. 
[1   Vernon  162.J 

A.  being  indebted  unto  B.  makes  C.  his  executor.  C.  wastes  the 
estate  and  dies,  and  makes  D.  his  executor,  and  by  his  will  devises 
several  legacies.  D.  pays  the  legacies.  B.  exhibits  a  bill  against  D.  the 
executor  of  C.  for  his  debt  due  from  the  first  testator,  and  against  the 
legatees  in  the  will  of  C.  to  compel  them  to  refund  their  legacies,  there 
not  being  now  sufficient  assets  of  the  first  testator. 

Decreed  that  the  legatees  should  refund. 

^  "Equity  is  the  suitable  adjustment  of  things,  which  in  like  causes  seeks  to 
administer  like  rights,  and  adjusts  all  things  well  on  an  equal  platform,  and 
it  is  termed  equity,  as  being  as  it  were  equality,  and  it  is  employed  in  things, 
that  is,  in  the  sayings  and  actions  of  men."     Bracton,  Lib.  1,  Cap.  4,  §  5. 

"While  the  common  law  looked  at  and  protected  the  rights  of  a  person 
as  a  separate  and  distinct  individual,  eqiiity  rather  regards  and  maintains, 
as  far  as  possible,  the  rights  of  all  who  are  connected  by  any  common  bond  of 
interest  or  of  obligation."     Pomeroy  Equity  Jurisprudence  §  405. 

For  a  collection  of  the  early  cases,  with  notes,  see  Francis  IMaxims  in 
Equity  9;  and  see  also  2  Spence  Jurisdiction  of  the  Court  of  Chancery  ch.  8, 
pp.   721,   817. 


364  LOKD  KENNOULE  v.  EARL  OF  BEDFORD     [part  i. 

GOSLING  V.  DORNEY. 

In  Chancery,  before  Lord  Chancellor  Jefferies,  1687. 

[1    Vernon  482.] 

Where  land  is  devised  to  be  sold  for  the  payment  of  debts  and  legacies : 
the  Lord  Chancellor  was  of  opinion,  that  the  debts  and  legacies  should 
be  paid  in  equal  proportion  without  any  preference  to  the  debts:  and  so 
it  was  resolved  in  the  case  of  Sir  John  Boioles  by  the  Lord  Nottingham, 
that  debts  and  legacies  should  be  paid  pari  passu;  but  the  Lord  North 
reversed  that  decree,  and  gave  preference  to  the  debts:  and  so  the  Lord 
North  likewise  in  the  case  of  Hixon  and  Witham,  decreed  the  debts  to 
be  first  paid;  but  the  Lord  Chancellor  declared  he  was  not  satisfied  with 
the  opinion,  but  would  consider  of  it. 


Maytin  v.  Hoper  (1744)  Cases  Temp.  Hardwicke  {Ridgway)  206,  209: 
Mr.  Attorney  General:  If  an  estate  is  devised  in  trust  to  be  sold  for 
payment  of  debts  and  legacies,  the  bond  and  simple  contract  creditors 
shall  be  paid  in  preference  to  the  legatees,  and  though  this  might  have 
been  decreed  otherwise  formerly,  yet  it  is  now  the  established  equity  of 
this  court,  which  will  decree  the  testator  to  do  as  he  ought  to  do,  by  being 
just,  before  he  ventures  to  be  bountiful ;  and  as  a  former  Chancellor  said, 
a  court  of  equity  shall  not  decree  a  man  to  sin  in  his  grave. 

To  which  the  Lord  Chancellor  Hardwicke  assented,  and  said  it  was 
now  settled  for  debts  to  be  paid  before  legacies,  out  of  equitable  assets, 
or  where  the  fund  was  merely  a  trust.' 


LORD  KENNOULE  v.  EARL  OF  BEDFORD. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1676. 

[1  Cases  in  Chancery  295.] 

The  case  was,  the  earl  by  his  last  will  devised  his  debts  to  be  paid  by 
his  lands  in  D.  and  if  those  sufficed  not,  by  sale  of  his  lands  in  S.  and  if 
those  sufficed  not,  by  sale  of  his  park ;  and  if  that  sufficed  not,  by  sale  of 
his  lands  in  Waltham,  and  devised  that  the  plaintiff  should  have  600?. 

'  See  to  the  same  effect,  Sir  Wm.  Grant  in  Kidney  v.  Coussruaker,  1806, 
12  Vcs.   136,   154. 

I 


CHAP.  IV.]  CHILD  V.  STEPHENS  365 

per  annum,  during  his  life  out  of  liis  lands  in  Waltham.  The  trustees 
sold  D.  and  S.  and  a  great  part  of  his  lands  in  Waltham,  and  paid  the 
debts;  but  the  park  was  not  sold;  but  the  lands  in  Waltham  not  sold  are 
not  sufficient  to  answer  the  annuity  which  was  4,000L  arrear.  It  was 
prayed  that  since  Waltham  lands  were  sold  instead  of  his  park,  that  the 
park  might  be  sold  to  satisfy  the  arrears,  which  was  ordered  accordingly, 
and  the  money  to  be  so  applied.  But  there  arose  some  impediment  in 
the  sale  by  reason  of  some  title  pretended  to  the  park  by  some  who  were 
no  parties  to  the  bill;  and  thereupon,  however,  the  possession  of  the  park 
was  decreed  to  the  plaintiff  against  the  trustees,  and  all  t'^e  profits  of 
Waltham  lands  unsold. 


ANONYMUS. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1681. 
[2  Ventris  353.] 

Note:  It  is  the  Course  here,  that  where  a  Man  dies  in  Debt,  and 
under  several  Incumbrances,  {viz.)  Judgments,  Statutes,  Mortgages,  &c. 
and  the  Heir  at  Law  buys  in  any  of  them  that  are  of  the  first  Date, 
if  those  which  have  the  later  Securities  prefer  their  Bill,  the  Incum- 
brances bought  in  shall  not  stand  in  their  Way  for  more  than  the  Heir 
really  paid  for  them. 


CHILD  V.  STEPHENS. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1682. 

[1  Vernon  101.] 

This  case  came  before  the  Lord  Chancellor,  upon  a  point  reported 
specially  by  the  Master  for  his  lordship's  judgment,  and  was  in  short 
no  more  than  this.  Upon  Mr.  Child's  estate  there  were  many  mortgages, 
judgments,  and  statutes,  and  he  likewise  owed  several  debts  upon  bond 
and  simple  contract,  and  had  both  by  deed  in  his  life-time  and  by  will 
conveyed  and  settled  all  his  lands  upon  trustees  for  payment  of  his  debts : 
now  some  parts  of  his  estate  he  had  mortgaged  no  less  than  thrice  over; 
each  time  for  near  the  full  value. 

It  was  now  insisted,  that  these  subseqiient  mortgages  were  not  incum- 
brances on  the  land;  for  all  the  estate  in  law  was  in  the  first  mortgagee, 
and  so  the  subsequent  mortgagees  had  only  an  equity;  and  likewise  the 


366  CHILD  V.  STEPHENS  [part  i. 

judgments,  they  would  not  immediately  affect  the  land  then  in  mort- 
gage: and  it  comes  within  the  common  case,  where  a  man  settles  by  deed, 
or  devises  by  will,  lands  for  payment  of  his  debts;  there  all  creditors 
shall  be  paid  alike  in  proportion ;  whether  they  are  creditors  by  bonds 
or  on  simple  contract,  unless  their  security  do  affect  the  very  land  so 
settled  or  devised  for  payment  of  debts;  and  therefore  the  subsequent 
judgments  and  mortgages  ought  only  to  be  paid  in  proportion  with  the 
bond  creditors  and  debts  upon  simple  contract,  which  the  Lord  Chan- 
cellor at  first  conceived  ought  to  be  so  done;  and  asked  what  could  be 
said   against   it.  ' 

Whereupon  it  was  insisted,  that  the  mortgagees  had  a  security  for 
their  money,  which  a  court  of  equity  would  never  take  from  them,  and 
being  so,  there  could  be  no  sale  made  of  this  estate  without  their  consent ; 
and  so  all  the  debts  would  remain  unsatisfied :  for  they  that  had  the  sub- 
sequent securities,  had  still,  in  preservation  of  their  own  interest,  a  right 
to  redeem :  and  to  set  this  estate  in  a  course  of  redemption,  would  make 
pretty  work  in  this  case,  where  there  were  more  than  thirty  mortgages. 
Eor  example,  ^.  is  a  subsequent  mortgagee;  B.  has  a  prior  mortgage  of 
a  moiety  of  the  lands  contained  in  A.'s  mortgage,  and  also  several  other 
lands.  C.  has  a  prior  mortgage  of  the  other  moiety  of  the  lands  com- 
prised in  A.'s  mortgage,  and  also  of  several  other  lands:  now  has  A.  a 
plain  right  to  redeem  all  the  lands  contained  in  both  the  mortgages  of  B. 
and  C. ;  and  so  it  may  be  carried  on  through  the  alphabet. 

And  after  long  debate,  the  Lord  Chancellor  ordered,  that  the  real  se- 
curities should  be  first  satisfied,^  and  then  the  debts  by  bond  and  simple 
contract  to  be  paid  in  average;  for  that  any  other  method  in  this  case 
would  become  impracticable. 

Afterwards  at  another  day,  viz.  5th  of  Decemher,  being  the  first  seal, 
a  motion  was  made  in  this  case  on  behalf  of  one  Penruddocke,  (who  had 
a  judgment  on  this  estate)  that  he  might  be  let  into  a  satisfaction  of 
his  judgment,  before  the  second  mortgagees,  he  being  at  law  intitkd  to 
that  preference,  and  therefore  ought  not  to  be  deprived  of  it  in  equity. 

The  Lord  Chancellor  declared,  he  thoiight  the  motion  reasonable ;  till 
upon  repeating  the  reasons  above  mentioned  he  was  satisfied,  it  was  not 
to  be  done  in  this  case:  if  legal  preference  should  be  precisely  observed, 
it  would  end  in  confusion;  and  so  made  no  order  upon  the  motion;  all 
the  other  creditors  having  consented  to  the  former  order;  but  left  Pen- 
ruddocke^to  get  his  satisfaction,  as  he  could  by  law. 

^  "But  otherwise  it  is  in  case  of  debts  on  judgments,  that  in  their  own 
natiire  charf^c  the  lands."  Wolestoncroft  v.  Long,  1003,  1  Cases  in  Ch.  32 
(see  case  printed,  supra). 

For  a  collection  of  the  early  cases  on  this  point,  see  Coniyn's  Digest,  Chan- 
cery, 3  A.  4. 


CHAP.  IV.]  BERING  V.  EARL  OF  WINCIIELSEA  367 

LAKE  V.  GIBSON. 

In  Chancery,  before  Sir  Joseph  Jekyll,  M.  R.,  1729 

[1  Equity  Cases  Abridged  290.J  ' 

The  Commissioners  of  Sewers  had  sold  and  conveyed  lands  to  five  per- 
sons and  their  heirs,  who  afterwards,  in  order  to  improve  and  cultivate 
those  lands,  entered  into  articles  whereby  they  agreed  to  be  equally  con- 
cerned as  to  profit  and  loss,  and  to  advance  each  of  them  such  a  sum  to 
be  laid  out  in  the  manurance  and  improvement  of  the  land. 

Sir  Joseph  Jekyll,  M.  R.,  held  that  they  were  tenants  in  common,  and 
not  joint  tenants,  as  to  the  heneficial  interest  or  right  in  those  lands,  and 
that  the  survivor  should  not  go  away  with  the  whole;  for  then  it  might 
happen  that  some  might  have  paid  or  laid  out  their  share  of  the  money, 
and  others,  who  had  laid  out  nothing,  go  away  with  the  whole  estate. 

And  his  Honor  held,  that  when  two  or  more  purchase  lands,  and  ad- 
vance the  money  in  equal  proportions,  and  take  a  conveyance  to  them 
and  their  heirs,  that  this  is  a  joint-tenancy;  that  is,  a  purchase  by  them 
jointly  of  the  chance  of  survivorship,  which  may  happen  to  the  one  of 
them  as  well  as  to  the  other;  but  where  the  proportions  of  the  money  are 
not  equal,  and  this  appears  in  the  deed  itself,  this  makes  them  in  the 
nature  of  partners;  and  however  the  legal  estate  may  survive,  yet  the  sur- 
vivor shall  be  considered  but  as  a  trustee  for  the  others,  in  proportion  to 
the  sums  advanced  by  each  of  them. 

So,  if  two  or  more  make  a  joint  purchase  and  afterwards  one  of  them 
lays  out  a  considerable  sum  of  money  in  repairs  or  improvements,  and 
dies,  this  shall  be  a  lien  on  the  land,  and  a  trust  for  the  representative 
of  him  who  advanced  it;  and  that  in  all  other  cases  of  a  joint  undertaking 
or  partnership,  either  in  trade  or  any  other  dealing,  they  were  to  be  con- 
sidered as  tenants  in  common,  or  the  survivors  as  trustees  for  those  who 
were  dead. 


BERING  V.  EARL  OF  WINCHELSEA. 

In  Chancery,  17S7. 

[1  Cor  Chancery  318.] 

Thomas  Bering,  Esq.  having  been  appointed  collector  of  some  of  the 
duties  belonging  to  the  customs,  it  became  necessary  upon  such  appoint- 
ment for  him  to  enter  into  bonds  to  the  crown  with  three  securities  for 

'This  case  is  printed  as  it  appears  in  1  White  and  Tudor's  Leading  Cases 
in  Equity,  4th  Am.  ed.  Pt.  1,  p.  264  (*  177).  See  the  same  citation  for  a  valu- 
able note  on  Sir  Joseph  JekyU's  remark  concerning  purchases  by  equal  and  un- 
equal proportions,  p.  268. 


368  DEKING  v.  EARL   OF  WINCHELSEA  [part  i. 

the  due  performance  of  this  office.  Sir  Edward  Bering  his  brother,  the 
Earl  of  Winchelsea,  and  Sir  John  Rous,  having  agreed  to  become  sure- 
ties for  him,  a  joint  and  several  bond  was  executed  by  Thomas  Bering 
and  Sir  Edward  Bering  to  the  crown  in  the  penalty  of  4000Z.,  another 
joint  and  several  bond  by  Thomas  Bering  and  the  Earl  of  Winchelsea, 
and  a  third  by  Thomas  Bering  and  Sir  John  Rous  in  the  same  penalty 
of  4000Z.,  all  conditioned  alike  for  the  due  performance  of  Thomas  Ber- 
ing's duty  as  collector.  Mr.  Bering  being  in  arrear  to  the  crown  to  the 
amount  of  3883/.  14s.,  the  crown  put  the  first  bond  in  suit  against  Sir 
Edward  Bering,  and  judgment  was  obtained  thereon  for  that  sum: 
whereupon  Sir  Edward  filed  this  bill  against  the  Earl  of  Winchelsea  and 
Sir  John  Rous,  claiming  from  them  a  contribution  towards  the  sum  so 
recovered  against  him. 

The  cause  had  been  argued  at  length,  in  Michaelmas  Term  last,  and 
now  stood  for  judgment. 

Lord  Chief  Baron  [Eyre]  /  *  *  *  The  real  point  is  whether  a 
contribution  can  be  demanded  between  the  obligors  of  distinct  and  sepa- 
rate obligations  under  the  circumstances  of  this  case.  It  is  admitted  that 
if  there  had  been  only  one  bond  in  which  the  three  sureties  had  joined 
for  12,000/.  there  must  have  been  a  contribution  amongst  them  to  the 
extent  of  any  loss  sustained ;  but  it  is  said  that  that  case  proceeds  on 
the  contract  and  privity  subsisting  amongst  the  sureties,  which  this  case 
excludes;  that  this  case  admits  of  the  supposition  that  the  three  sureties 
are  perfect  strangers  to  each  other,  and  each  of  them  might  be  ignorant 
of  the  other  sureties,  and  that  it  would  be  strange  to  imply  any  con- 
tract as  amongst  the  sureties  in  this  situation;  that  these  are  perfectly 
distinct  undertakings  without  connection  with  each  other,  and  it  is 
added,  that  the  contribution  can  never  be  eodem  mode,  as  in  the  three 
joining  in  one  bond  for  12,000/.,  for  there,  if  one  of  them  become  insol- 
vent, the  two  others  would  be  liable  to  contribute  in  moieties  to  the 
amount  of  6000/.  each,  whereas  here  it  is  impossible  to  make  them  con- 
tribute beyond  the  penalty  of  the  bond.  Mr.  MadocTcs  has  stated  what 
is  decisive,  if  true,  that  nobody  is  liable  to  contribute  who  does  not  ap- 
pear on  the  face  of  the  bond ;  if  this  means  only  that  there  is  no  contract, 
then  it  comes  back  to  the  question,  whether  the  right  of  contribution  is 
founded  on  contract.  If  we  take  a  view  of  the  cases  both  in  law  and 
equity,  we  shall  find  that  contribution  is  bottomed  and  fixed  on  general 
X)rinciples  of  justice,  and  does  not  spring  from  contract;  though  con- 
tract may  qualify  it,  as  in  Swain  v.  Wall,  1  Ch.  Rep.  149.  In  the  Regis- 
ter, 176,  b.  there  are  two  writs  of  contributions,  one  inter-cohceredes, 
the  other  inter-cofeoffatos;  these  are  founded  on  the  statute  of  Marl- 
hridfji; :  the  great  object  of  the  statute  is  to  protect  the  inheritance  from 
more  suits  than  are  necessary.  Though  contribution  is  a  part  of  the 
provision  of  the  statute,  yet  in  Fitz.  N.  B.  338,  there  is  a  writ  of  con- 

'  A  part  of  tlio  opinion  (whicli  was  printed  under  the  maxim  as  to  the  clean 
hands  of  a  suitor,  supra)   has  been  omitted. 


CHAP.  IV.]  BERING  V.  EARL  OF  WINCHELSEA  369 

tribution  at  common  law  amongst  tenants  in  common,  as  for  a  mill  fall- 
ing to  decay.  In  the  same  page  Fitzherhert  takes  notice  of  contribution 
between  co-heirs  and  co-feoffees,  and  as  between  co-feoffees  he  supposes 
there  shall  be  no  contribution  without  an  agreement,  and  the  words  of 
the  writ  countenance  such  an  idea,  for  the  words  are  "  ex  eorum  assensu," 
and  yet  this  seems  to  contravene  the  express  provision  of  the  statute: 
as  to  co-heirs  the  statute  is  express ;  it  does  not  say  so  as  to  feoffees,  but  it 
gives  contribution  in  the  same  manner.  In  Sir  William  Herbert's  case, 
3  Co.  11.  h.,  many  cases  of  contribution  are  put;  and  the  reason  given 
in  the  books  is,  that  in  equali  jure  the  law  requires  equality;  one  shall 
not  bear  the  burthen  in  ease  of  the  rest,  and  the  law  is  grounded  in  great 
equity.  Contract  is  never  mentioned.  Now  the  doctrine  of  equality 
operates  more  effectually  in  this  court  than  in  a  court  of  law.  The 
difficulty  in  CoJce's  Cases  was  how  to  make  them  contribute;  they  were 
put  to  their  audita  querela,  or  scire  facias.  In  equity  there  is  a 
string  of  cases  in  1  Eq.  Ca.  Ahr.  tit.  "  Contribution  and  average."  An- 
other case  occurs  in  Harg.  Law  Tracts  on  the  right  of  the  King  on  the 
prisage  of  wine.  The  King  is  entitled  to  one  ton  before  the  mast,  and 
one  ton  behind,  and  in  that  case  a  right  of  contribution  accrues ;  for  the 
King  may  take  by  his  prerogative  any  two  tons  of  wine  he  thinks  fit,  by 
which  one  man  might  suffer  solely;  but  the  contribution  is  given  of 
course  on  general  principles  which  govern  all  these  cases.  Now  to  come 
to  the  particular  case  of  sureties;  it  is  clear  that  one  surety  may  compel 
a  contribution  for  another,  towards  payment  of  a  debt  to  which 
they  are  jointly  bound.  On  what  principle?  Can  it  be  necessary  to 
resort  to  the  circumstance  of  a  joint  bond?  What,  if  they  are  jointly 
and  severally  bound?  What  difference  will  it  make  if  they  are  severally 
bound,  and  by  what  different  instruments,  but  for  the  same  principal, 
and  the  same  engagement  ?  In  all  these  cases  the  sureties  have  a  com- 
mon interest,  and  a  common  burthen ;  they  are  joined  by  the  common  end 
and  purpose  of  their  several  obligations,  as  much  as  if  they  were  joined  in 
one  instrument,  with  this  difference  only,  that  the  penalties  will  ascertain 
the  proportion  in  which  they  are  to  contribute,  whereas  if  they  had  joined 
in  one  bond,  it  must  have  depended  on  other  circumstances.  In  this  case 
the  three  sureties  are  all  bound  that  Mr.  Dering  shall  accoimt  for  the 
moneys  he  receives ;  this  is  a  common  burthen ;  all  the  bonds  are  forfeited 
at  law;  and  in  this  court,  as  far  as  the  balance  due;  the  balance  might 
have  been  so  great  as  to  have  exhausted  all  the  penalties,  and  then  the 
obligee  forces  them  all  to  pay ;  but  here  the  balance  is  something  less  than 
one  of  the  penalties.  Now  who  ought  to  pay  this  ?  the  one  who  is  sued  must 
pay  it  to  the  crown,  as  in  the  case  of  prisage,  but,  as  between  themselves, 
there  shall  be  a  contribution,  for  they  are  in  equali  jure.  This  is  carried 
a  great  way,  where  they  are  joined  in  one  obligation,  for  if  one  should 
pay  the  whole  12,000/.,  and  the  second  were  insolvent,  the  third  shall 
contribute  a  moiety,  though  he  certainly  never  meant  to  be  liable  for 
more  than  a  third:  this  circumstance,  and  the  possibility  of  one  being 


370  DEEING  v.  EAllL  OF  WINCHELSEA  [part  i. 

liable  for  the  whole,  if  the  other  two  should  prove  insolvent,  suggested 
the  mode  of  entering  into  separate  bonds;  but  this  does  not  vary  the 
reason  for  contribution,  for  there  is  the  same  principal  and  the  same 
engagement;  all  are  equally  liable  to  the  obligee  to  the  extent  of  the 
penalty  of  the  bonds  when  they  are  not  all  exhausted :  if,  as  in  the  com- 
mon case  of  a  joint  bond,  no  distinction  is  to  be  made,  why  shall  not  the. 
same  rule  govern  here  ?  As  in  the  case  of  average  of  cargo  in  a  court  of 
law,  qui  sentit  commodum  sentire  debet  et  onus.  This  principle  has  a 
direct  application  here,  for  the  charging  one  surety,  discharges  the 
other,  and  each  therefore  ought  to  contribute  to  the  onus.  In  questions 
of  average  there  is  no  contract  or  i^rivity  in  ordinary  cases,  but  it  is  the 
result  of  general  justice  from  the  equality  of  burthen  and  benefit:  then 
there  is  no  difficulty  or  absurdity  in  making  a  contribution  take  place  in 
this  case,  if  not  founded  on  contract,  nor  any  difficulty  in  adjusting  the 
proportions  in  which  they  are  to  contribute;  for  the  penalties  will 
necessarily  determine  this. 

The  objection  in  point  of  form,  which  1  before  mentioned,  is,  that  the. 
bill  cannot  be  sustained,  inasmuch  as  it  has  not  charged  the  insolvency 
of  the  principal  debtor,  and  that  such  a  charge  is  absolutely  necessary. 
As  a  question  of  form,  it  ought  to  have  been  brought  on  by  demurrer; 
but  in  substance  the  insolvency  of  Mr.  Bering  may  be  collected  from  the 
whole  proceedings,  which  strongly  imply  it;  for  the  plaintiff  appears  to 
have  submitted  to  the  judgment,  and  the  defendants  have  made  their 
defence  on  other  grounds.     Lawson  v.  White,  ante,  276. 

On  the  whole,  therefore,  we  think  that  the  plaintiff  is  entitled  to  the 
relief  he  prays,  and  declare  that  the  balance  due  from  Thomas  Derin^ 
being  admitted  on  all  hands  to  amount  to  the  sum  of  3883L  14s.  8^d.  the 
plaintiff  Sir  Edward  Bering,  and  the  two  defendants  the  Earl  of 
Winchelsea  and  Sir  John  Rous  ought  to  contribute  in  equal  shares  to 
the  payment  of  that  sum,  and  direct  that  the  said  plaintiff  and  defend- 
ants do  pay  in  discharge  thereof  each  of  them  the  sum  of  1294L  lis.  7d. 
And  that  on  payment  thereof  the  Attorney-General  shall  acknowledge 
satisfaction  on  the  record  of  the  said  judgment,  and  that  the  two  bonds 
entered  into  by  the  Earl  of  Winshelsea  and  Sir  John  Rous,  be  delivered 
up  tf)  them  respectively.  But  this  not  being  a  very  favourable  case  to  the 
plaintiff,  and  the  equity  he  asks  being  doubtful,  we  do  not  think  it  a 
case  for  costs.' 

' "  "I'lic  |niiicif)I<','  observed  Lord  Redcsdale,  'ostablisliod  in  the  case  of 
Dering  r.  Loid  Winehelsea,  is  universal,  that  the  riglit  and  duty  of  contribu- 
tion is  founded  in  doctrines  of  equity;  it  does  not  de])end  upon  contract.  If 
several  persons  aic  indebted,  and  f)ne  makes  tlie  jiaynient.  the  creditor  is 
bonnd  in  conscience,  if  not  by  contract,  to  give  to  the  party  paying  the  debt 
all  liis  remedies  against  tlie  other  debtors.  The  cases  of  average  in  equity 
rest  upon  tlie  same  principle.  It  would  be  against  equity  for  the  creditor  to 
exact  or  receive  payment  from  one,  and  to  permit,  or  by  his  conduct  to  cause, 
the  other  debtors  to  be  exempt  from  payment.     He  is  bound,  seldom  by  con- 


CHAP.  IV.]  SIBLEY  V.  BAKER  371 

SIBLEY  V.  BAKER. 

In  the  Supreme  Court  of  Micihgan,  1871. 

[23  Michigan  312.] 

Appeal    ill    Chancery    from    Eaton    Circuit. 

This  was  a  foreclosure  bill  filed  by  Hiram  Sibley  against  Jennie  Baker, 
Alonzo  Baker,  Nelson  G.  Isboll  and  O.  E.  Winchester,  trustee  for  the 
Winchester  Repeating  Arms  Company.  The  facts  are  sufficiently  set 
forth  in  the  opinion. 

COOLEY,  J.' 

This  is  a  foreclosure  case,  and  the  questions  ^Yhich  arise  relate  to  the 
marshaling  of  securities.  It  seems  that  the  mortgagor  first  gave  a  mort- 
gage to  complainant  on  three  parcels  of  land,  which  for  our  present  pur- 
pose we  may  designate  as  parcels  one,  two  and  three.  Afterwards  he 
gave  a  second  mortgage  to  complainant  on  parcels  one  and  two,  and  still 
later  a  third  mortgage  to  defendant  Winchester  on  parcels  two  and  three. 
The  complainant  foreclosed  the  second  mortgage  in  chancery,  making 
Winchester  a  party  to  the  suit,  and  the  decree  w4iich  he  obtained  directed 
that  parcel  two,  for  Winchester's  protection,  should  be  sold  last.  The 
sale  was  made  as  directed,  and  defendant  Isbell  became  the  purchaser  of 
both  parcels  for  a  sum  in  the  aggregate  equaling  the  amount  due  upon  the 
decree,  taking  them  subject  to  the  first  mortgage.  The  present  suit  was 
afterwards  brought  for  the  foreclosure  of  the  first  mortgage,  and  in  this 
it  is  shown  that  defendant  Isbell  has  become  the  purchaser  of  complain- 
ant's interest  in  parcels  one  and  two,  but  on  the  understanding  that 
when  sale  is  made  on  the  foreclosure  of  this  mortgage,  parcel  three  shall 
be  sold  first.  And  the  question  now  is  whether  the  decree  shall  be  in 
accordance  with  this  understanding,  or  whether,  on  the  other  hand, 
defendant  Winchester  has  not  a  right  to  demand  that  the  first  parcel  to 

tract,  but  always  in  conscience,  as  far  as  he  is  able,  to  put  the  party  paying 
the  debt  upon  the  same  footing  with  those  who  are  equally  bound.  That 
was  the  principle  of  the  decision  in  Bering  v.  Lord  Winchelsca;  and  in  that 
case  there  was  no  evidence  of  contract;'  Stirling  v.  Forrester,  3  Bligh.  59.  See 
also  Craythorne  v.  Swinburne,  14  Ves.  160,  165,  169;   Hartley  v.  O'Flaherty, 

1  Beat.  77,  78;  Ware  v.  Horwood,  14  Ves.  31;  Mayhew  v.  Crickett,  and  note, 

2  Swanst.  189,  192;  Spottisword's  Case,  6  De  G.  Mae.  &  G.  345,  371,  375; 
Whiting  V.  Burke,  10  L.  R.  Eq.  539;  6  L.  E.  Ch.  App.  342;  where  the  doctrine 
laid  down  in  Bering  v.  Lord  Winchelsea  has  been  recognized  and  approved 
of." — Note  to  Bering  v.  Lord  Winchelsea  in  1  White  &  Tudor's  Leading  Cases 
in  Equity,  Pt.  1,  124  (*  106)  ;  and  see  the  balance  of  the  note. 

*  It  is  scarcely  necessary  to  state  that  the  Cooley  of  the  principal  case  is 
Thomas  M.  Cooley,  an  ornament  of  the  bench  and  bar  of  the  United  States, 
as  well  as  of  Michigan.  KnoAvn  for  his  text?  on  Torts  and  Taxation,  it  is 
by  his  classical  treatise  on  Constitutional  Limitations  that  his  name  is 
familiar  in  Eurape  and  an  unquestioned  authority  in  America. 


372  SIBLEY  v.  BAKER  [part  i. 

be  sold  shall  be  parcel  one.  The  circuit  judge  thought  he  had,  and  made 
decree  to  that  effect. 

To  determine  whether  this  decree  was  right,  we  may  apply  some 
very  simple  tests.  It  m.ust  be  conceded  that  complainant  while  holding 
the  first  and  second  mortgages  had  a  right  to  have  the  latter  protected  on 
any  foreclosure  of  the  former,  so  far  as  the  land  mortgaged  could  give 
protection ;  the  just  presumption  being  that  both  parties  understood  when 
giving  and  taking  the  same  that  both  securities  were  to  be  made  effectual, 
and  not  that  any  rule  of  law  was  to  be  applied  by  means  of  which  one 
should  be  made  to  destroy  the  other.  But  in  order  to  protect  the  second 
mortgage,  the  mortgagee  must  have  had  the  right,  on  the  foreclosure  of 
the  first  mortgage,  to  have  parcel  three  sold  first,  since,  as  the  second 
mortgage  only  covered  parcels  one  and  two,  if  those  should  be  first  re- 
sorted to  for  the  satisfaction  of  the  first  mortgage,  and  sufficient  for  the 
purpose  should  be  realized  from  them,  the  effect  would  be  that  the  second 
mortgage  would  thereby  be  cut  off,  and  complainant  would  have  received 
no  benefit  whatever  from  parcel  three  having  been  included  in  his  mort- 
gage. 

It  will  not  be  claimed,  we  suppose,  that  the  giving  of  a  third  mortgage 
could  have  the  effect  to  take  from  the  holder  of  the  others  any  right  he 
had  to  make  his  securities  available;  and  if  not,  then  parcel  three,  after 
such  mortgage  was  given,  must  have  remained  as  it  was  before,  the 
primary  fund  for  the  satisfaction  of  the  first  mortgage.  And  this  order 
of  sale  being  established  for  the  protection  of  the  second  mortgage,  a  pur- 
chaser on  the  foreclosure  of  that  mortgage  must  have  a  right  to  insist 
upon  being  protected  in  his  purchase,  inasmuch  as  the  right  in  the  mort- 
gagee to  have  the  securities  marshaled  would  be  of  no  value  to  him  if 
it  did  not  continue  for  the  protection  of  the  purchaser.  This  being  the 
law,  we  must  suppose  defendant  Winchester  to  have  been  aware  of  it, 
and  to  have  understood  when  he  took  his  security  on  parcel  three  that 
it  was  liable  to  be  the  first  resort  for  the  satisfaction  of  the  first 
mortgage. 

We  shall  reach  the  same  conclusion  by  a  simple  application  of  the 
familiar  rule,  that  where  a  mortgage  is  foreclosed  which  covers  several 
parcels,  some  of  which  have  been  sold  or  incumbered  by  the  mortgagor 
since  it  was  given,  the  sale  of  the  parcels  shall  be  decreed  to  be  made  in 
the  inverse  order  of  their  alienation.  This  rule,  as  between  the  first  and 
second  mortgages,  requires  parcel  three  to  be  first  sold  when  the  former 
is  foreclosed.  If  those  mortgages  had  been  given  to  different  persons, 
this  would  be  conceded;  but  we  think  it  can  make  no  difference  that  both 
were  given  to  the  same  person.  We  perceive  no  reason  in  the  fact  of 
complainant  holding  one  mortgage  which  should  make  a  second  any  less 
available  to  him  as  a  legal  security,  than  it  would  have  been  if  taken  by 
n  third  person;  and  it  couhl  not  be  equally  available  if  a  purchaser  under 
it  would  not  Ix^  equally  protected.  And  in  this  connection  it  may  be  well 
to  bear  in  mi  ml  I  lie  design  and  object  of  lhe  rul(>s  for  tlie  marshaling  of 


CHAP.  IV.]  SIBLEY  V.  BAKER  373 

securities  at  the  instance  of  subsequent  incumbrancers.  Those  rules  never 
assume  to  take  from  a  prior  incumbrancer  any  substantial  right;  their 
purpose  is  to  require  the  prior  incumbrancer  to  enforce  his  just  rights 
in  such  order  of  priority  as,  without  loss  to  himself,  will  protect,  as  far 
as  may  be  practicable,  the  subsequently  acquired  interests  of  others.  But 
the  claim  of  defendant  Winchester,  if  conceded,  would  have  deprived 
complainant,  as  owner  of  the  second  mortgage,  of  a  substantial  right,  as 
we  have  already  seen. 

The  right  of  this  defendant  may  also  be  tested  by  ascertaining  what 
privilege  of  redemption  he  would  have  had  if  the  first  mortgage  had  been 
foreclosed  under  the  statute,  and  all  the  parcels  sold  separately.  Parcel 
three  he  might  redeem,  because  he  has  a  mortgage  on  the  equity  of  re- 
demption in  that,  which  has  never  in  any  way  been  cut  off  or  extinguished. 
But  he  could  not  redeem  parcel  two  and  claim  a  right  to  be  subrogated  to 
the  rights  of  the  mortgagee  therein,  because  his  lien  on  the  equity  of 
redemption  in  that  parcel  has  been  extinguished  by  the  foreclosure  and 
sale  under  the  second  mortgage.  Neither  could  he  redeem  and  claim  the 
like  right  of  subrogation  as  to  parcel  one,  for  upon  that  he  never  had  any 
lien,  nor  has  he  had  any  right  in  respect  to  it,  except  that  it  should  be 
made  use  of  as  a  fund  for  the  protection  of  his  mortgage.  But  that  right 
was  claimed  by,  and  conceded  to,  him  on  the  foreclosure  of  the  second 
mortgage,  and  to  concede  it  again,  on  the  foreclosure  of  the  first,  would 
be  inconsistent  with  the  corresponding  right  on  the  part  of  the  purchaser 
under  the  second  mortgage,  which,  being  first  in  date,  is  also  first  in 
equity. 

It  is  said  on  behalf  of  defendant  Winchester,  that  he  has  never,  until 
now,  had  an  opportunity  to  protect  his  interest  in  parcel  three,  because, 
had  he  bid,  at  the  sale  under  the  prior  foreclosure,  a  sum  greater  than 
the  amount  due  on  the  decree,  it  must  have  been  paid  over  to  the  mort- 
gagor, and  consequently  would  have  been  of  no  avail  in  reducing  the 
securities.  But  this  is  a  mistake;  any  surplus  on  that  sale  must  have 
been  paid  into  court,  and  would  have  been  applied  on  some  one  of  the 
securities  on  the  proper  petition  being  presented. 

It  is  also  said  that  defendant  Isbell  made  his  purchase  under  the  sec- 
ond mortgage  subject  to  the  first.  This  appears  to  be  true,  but  it  also 
appears  that  it  was  part  of  the  arrangement  that  when  the  first  mortgage 
was  foreclosed  parcel  three  should  be  first  sold.  As  an  agreement  to  this 
effect  was  in  accordance  with  the  order  established  by  law,  and  therefore 
wronged  no  one,  we  discover  nothing  to  preclude  its  being  made.  The 
substance  of  the  arrangement  was,  that  he  bought  subject  to  the  first 
mortgage,  but  with  the  understanding  that  when  that  mortgage  was  fore- 
closed, the  relative  rights  of  parties  as  then  established  by  law  should  not 
be  disturbed. 

The  decree  of  the  circuit  court  in  chancery  must  be  so  modified  as  to 
conform  to  these  views,  and  the  cause  must  be  remanded  for  further  pro- 
ceedings.   The  costs  of  defendant  Isbell  on  this  appeal  will  be  taxed  in 


374  STEEL  V.  DIXON  [part  i. 

the  cause  and  added  to  the  amount  for  which  sale  is  to  be  made  under 
the  decree. 

The  otlier  Justices  concurred. 


Lanoy  v.  Duke  and  Dutchess  of  Atitol  (1742)  2  Ath.  444,  446. — Lord 
Chancellor  [Hardwicke].  Now  the  plaintiff  is  a  daughter,  and  a  child, 
and  in  this  court  considered  in  the  nature  of  a  creditor  for  the  portion. 

If  that  be  so,  what  will  be  the  effect  of  it  in  equity  ? 

By  the  Master's  state  of  the  account,  there  are  great  arrears  of  the 
500  I.  per  ann.  jointure  upon  the  wife,  and  likewise  of  the  80  I.  per  arm. 
maintenance  for  the  plaintiff,  almost  a  deficiency  of  4000  I.  which  must 
run  on  as  a  burden  upon  the  inheritance,  and,  as  has  been  truly  said,  it 
must  exhaust  the  inheritance,  if  the  Dutchess  of  Athol  should  live  to  be 
very  old,  which,   in   the  course  of  nature,   she   may  do. 

The  Dutchess  has  two  funds,  real  and  personal  assets,  to  answer  her 
demands,  the  plaintiff  has  only  one. 

Is  it  not  then  the  constant  equity  of  this  court  that  if  a  creditor  has 
two  funds,  he  shall  take  his  satisfaction  out  of  that  fund  upon  which 
another  creditor  has  no  lien. 

Suppose  a  person,  who  has  two  real  estates,  mortgages  both  to  one  per- 
son, and  afterwards  only  one  estate  to  a  second  mortgagee,  who  had  no 
notice  of  the  first;  the  court,  in  order  to  relieve  the  second  mortgagee, 
have  directed  the  first  to  take  his  satisfaction  out  of  that  estate  only 
which  is  not  in  mortgage  to  the  second  mortgagee,  if  that  is  sufficient 
to  satisfy  the  first  mortgage,  in  order  to  make  room  for  the  second 
mortgagee,  even  though  the  estates  descended  to  two  different  persons. 

And  therefore  I  am  of  opinion,  that  so  far  as  will  secure  the  plaintiff 
her  GOOO  I.  fortune,  she  ought  to  be  considered  as  a  creditor,  and  intitled 
to  turn  the  Dutchess  upon  the  copyhold  and  personal  estate.^ 


STEEL  V.  DIXON. 

Ix  the  Hioti  Court  of  Justice,  Chancery  Di^sion,  1881. 

[Law  Reports,  17  Chancery  Division  825.] 

Money  was  advanced  to  one  Rohinson  on  the  security  of  a  promissory 
note  for  £800,  which  Dixon,  Gurney,  Steel,  and  Chater  signed  as  sureties. 
Dixon  and  Ourney  consented  to  sign  on  condition  only  that  special  se- 
curity be  given  them,  and   Uohinson  afterwards  assigned  property,  his 

'  From  anothpr  part  of  tho  opinion  it  appears  that  the  estate  in  contro- 
versy here  was  part  f)f  tliat  which  was  litigated  in  Frederick  v.  Frederick, 
1721,   1    I'eere  Wnis.  710,  supra. 


CHAP.  IV.]  STEEL  V.  DIXON  375 

furniture,  securing  their  share  of  money  payable  on  the  note.  Steel  and 
Chnter  had  no  knowledge  of  this  arrangement.  This  deed  was  registered 
under  the  Bills  of  Sale  Act.  Each  of  the;  four  sureties  contributed 
equally  to  take  up  the  note  at  the  bank.  Later  Dixon  and  Gurney  sold 
the  furniture,  realizing  on  it  about  £500.  This  action  was  brought  by 
Steel  and  Chater  who  insisted  that  the  Defendants  were  bound  to  account 
to  them  for  the  money  so  received.' 

Fry,  J."  In  my  opinion  the  Plaintiffs  are  entitled  to  share  in 
the  benefit  secured  by  the  deed  to  the  Defendants.  In  coming  to  that  con- 
clusion, I  base  myself  on  the  general  principle  applicable  to  co-sureties, 
as  established  by  the  well-known  and  often-cited  case  of  Dering  v.  Earl  of 
Winchelsea,  1  W.  &  T.  L.  C.  5th  Ed.  p.  106;  1  Cox  318,  the  short  effect  of 
which  I  take  to  be  that,  as  between  co-sureties,  there  is  to  be  equality  of  the 
burden  and  of  the  benefit.  Wlien  I  say  equality  I  do  not  mean  necessarily 
equality  in  its  simplest  form,  but  what  has  been  sometimes  called  propor- 
tionable equality.  The  result  of  that  case  was  expressed  by  Baron  Alder- 
son  in  Pendlebury  v.  Walker,  4  Y.  &  C.  Ex.  p.  441;  in  these  terms,  that 
*'  where  the  same  default  of  the  principal  renders  all  the  co-sureties  re- 
sponsible, all  are  to  contribute :  and  then  the  law  superadds  that  which  is 
not  only  the  principle  but  the  equitable  mode  of  applying  the  princijjle, 
that  they  should  all  contribute  equally,  if  each  is  a  surety  to  an  equal 
amount ;  and  if  not  equally,  then  proportionably  to  the  amount  for  which 
each  is  a  surety."  I  hold,  therefore,  that  the  result  of  Dering  v.  Earl  of 
Winchelsea  is  to  require  that  the  ultimate  burden,  whatever  it  may  be, 
is,  as  between  co-sureties,  to  be  borne  by  them  in  proportion  to  the  shares 
of  the  debt  for  which  they  have  made  themselves  responsible. 

If  that  be  the  case,  it  follows  that  each  surety  must  bring  into 
hotchpot  every  benefit  which  he  has  received  in  respect  of  the  surety- 
ship which  he  undertook,  and  if  he  has  received  a  benefit  by  way  of 
indemnity  from  the  principal  debtor,  it  appears  to  me  that  he  is  bound, 
as  between  himself  and  his  co-sureties,  to  bring  that  into  hotchpot,  in 
order  that  it  may  be  ascertained  what  is  the  ultimate  burden  which  the 
co-sureties  have  to  bear,  so  that  that  ultimate  burden  may  be  distributed 
between  them,  equally  or  proportionably,  as  the  case  may  require. 

In  coming  to  that  conclusion,  as  I  do  upon  principle,  I  am  much 
strengthened  by  the  American  authorities  to  which  my  attention  has  been 
called  by  Mr.  Caokson.  Mr.  Justice  Story,  in  his  Equity  Jurisprudence, 
asserts  the  principle  in  these  terms,  11th  Ed.  pi.  499:  "  Sureties  are  not 
only  entitled  to  contribution  from  each  other  for  moneys  paid  in  dis- 

^  The  statement  of  the  case  is  abridged. 

^  The  first  paragraph  of  the  opinion  of  the  learned  judge  is  omitted. 

This  is  the  venerable  and  learned  judge,  Sir  Edward  Fry,  whose  treatise 
on  Specific  Performance  {4th  edit.)  is  a  standard  authority  on  both  sides  of 
the  Atlantic.  It  Avill  be  of  interest  to  note  that  Sir  Edward  represented  Great 
Britain  in  the  recent  Dogger  Bank  Incident  between  Great  Britain  and  Kussia 
(1905). 


376  STEEL  v.  DIXON  [part  i. 

charge  of  their  joint  liabilities  for  the  principal,  but  they  are  also  entitled 
to  the  benefit  of  all  securities  which  have  been  taken  by  any  one  of  them 
to  indemnify  himself  against  such  liabilities."  And  in  the  case  of 
Miller  v.  Sawyer,  30 'Vermont,  412,  which  was  before  the  Court  of 
Chancery  in  the  State  of  Vermoni,  the  principle  is  stated  thus  by  Mr. 
Justice  Barrett,  the  learned  Judge  who  delivered  the  judgment  of  the 
Court.  Having  referred  to  Bering  ;;.  Earl  of  Winchelsea,  30  Vermont, 
417,  he  said:  "For  present  purposes  it  is  needless  to  cite  and  discuss 
the  books  and  cases  to  any  considerable  extent,  in  which  this  subject  is 
treated,  and  the  leading  principles  of  it  applied  in  settling  the  rights  and 
duties  of  parties.  It  may  be  comprehensively  stated,  that  persons  subject 
to  a  common  burden  stand  in  their  relation  to  each  other  upon  a  com- 
mon ground  of  interest  and  right,  and  whatever  relief,  by  way  of  in- 
demnity, is  furnished  to  either  by  him  for  whom  the  burden  is  assumed, 
enures  equally  to  the  relief  of  all  the  common  associates;"  and  in  the 
course  of  his  judgment  he  refers,  among  other  cases,  to  that  of  Hall  v. 
Eobinson,  8  Iredell,  56,  in  which  Chief  Justice  Ruffin  said :  "  The  relief 
between  co-sureties  in  equity  proceeds  upon  the  maxim  that  equality  is 
equity,  and  that  maxim  is  but  a  principle  of  the  simplest  natural  justice. 
It  is  a  plain  corollary  from  it  to  that,  when  two  or  more  embark  in  the 
common  risk  of  being  sureties  for  another,  and  one  of  them  subse- 
quently obtains  from  the  principal  an  indemnity  or  counter-security  to 
any  extent,  it  enures  to  the  benefit  of  all.  The  risk  and  the  relief  ought 
to  be  co-extensive."  These  American  decisions  are,  as  it  seems  to  me, 
exactly  in  point. 

Mr.  North  has  urged  that  a  diiference  may  arise  where  the  security 
taken  by  one  co-surety  is  taken  by  virtue  of  a  bargain  entered  into  be- 
tween him  and  the  principal  debtor  at  the  time  of  his  becoming  surety. 
In  my  judgment  that  is  immaterial.  I  think  it  does  not  affect  the  prin- 
ciple of  equity  to  which  I  have  referred  whether  the  security  is  the  result 
of  a  contract  with  the  debtor  at  the  time  when  the  co-surety  becomes  a 
surety,  or  is  voluntarily  given  subsequently,  or  arises  in  any  other  man- 
ner whatever.  I  repeat,  that  whatever  goes  to  diminish  the  total  amount 
of  the  burden  must,  in  my  judgment,  be  brought  into  hotchpot. 

In  saying  that,  however,  I  wish  to  guard  myself  against  its  being 
supposed  that  this  equity  may  not  in  any  case  be  varied  or  departed  from. 
Those  to  whose  benefit  the  security  enures  may,  of  course,  contract  them- 
selves out  of  the  benefit,  and  the  question  may  therefore  well  have  to  be 
considered  in  each  case  whether  there  has  been  such  a  contract  between 
the  co-sureties.  But  a  contract  between  one  surety  and  the  debtor  is 
not  to  be  confounded  with  a  contract  between  the  co-sureties — a  contract 
by  which  one  co-surety  renounces  his  equity  in  favour  of  another.  In 
the  next  place,  cases  may  arise  in  which  one  co-surety,  by  reason  of  his 
default  in  performing  his  duty  towards  the  other,  may  estop  himself  from 
asserting  the  equity  which  he  would  otherwise  have  had  against  him. 
Some  such  cases  have  been  suggested  by  Mr.  North  in  the  course  of  his 


CHAP.  IV.]  nOLLTNGSHEAD'S  CASE  377 

argument.  But  neither  of  those  principles  appears  to  me  to  apply  in  the 
present  case,  because  here  the  contract  upon  which  the  security  was  given 
was  made  between  the  debtor  and  two  of  the  co-sureties,  and  was  not  com- 
municated at  the  time  of  their  contract  of  suretyship  to  the  other  co- 
sureties, and  there  appears  to  me  to  be  nothing  in  the  conduct  of  the 
Plaintiffs  (upon  the  assumption  on  which  I  am  now  proceeding)  which 
can  deprive  them  of  the  benefit  of  their  right  against  the  co-sureties. 
Therefore,  on  this  assumption  I  hold  that  the  Plaintiffs  would  be  en- 
titled to  the  benefit  which  they  claim.  It  remains  to  be  considered  how 
far  the  assumptions  are  correct. 

The  question  was  then  argued  whether  the  deed  of  the  S-ith  of  Febru- 
ary, 1879,  was  invalid  as  against  the  trustee  in  the  liquidation. 

Fry,  J.,  held  that  the  deed  was  valid  as  against  the  trustee,  and  that 
consequently  the  Plaintiffs  were  entitled  to  receive  £200  from  the  Defend- 
ants Dixon  and  Gurney. 


L. — Equity  Aids  the  Vigilant. 


GODDAKD  V.  GODDARD. 

In  Chancery,  1640. 
[1  Reports  in  Chancery  1P)9.] 

Bill  of  Review  to  reverse  a  Decree  22  Jac.  the  Plaintiff  for  Error  says, 
the  Cause  was  referred  to  Four  Commissioners,  and  but  Three  certified; 
and  also  that  the  Lease,  which  the  Plaintiff  now  insists  on  was  not  then 
in  Issue,  and  the  Plaintiff  never  consented  to  the  Certificate. 

This  Court  upon  reading  the  Proofs,  it  appeared  by  Depositions  of  two 
Witnesses  there  was  an  Agreement  for  settling  the  Differences,  and  in 
regard  the  Decree  was  so  long  since  and  nothing  done  against  the  same 
in  all  this  Time  being  16  years,  this  Court  would  not  reverse  the  Decree. 


HOLLINGSHEAD'S  CASE. 

In  Chancery,  before  Lord  Chancellor  Macclesfield,  1721, 

[1  Peere  Williams  742.] 

A.  is  partner  with  B.  in  the  trade  of  a  mercer.  A.  dies  intestate,  and 
C.  his  administrator  brings  a  bill  in  equity  against  B.  for  an  account 
of  the  partnership  effects.  Whereupon  the  cause  is  heard,  and  an  ac- 
count being  decreed,  the  master  makes  a  report,  by  which  it  appears,  that 


378  HUET  V.  FLETCHER  [part  i. 

there  is  nothing  due  from  the  defendant  to  the  plaintiff.  C.  takes  ex- 
ceptions to  the  master's  report,  and  then  dies,  and  the  now  plaintiff 
having  taken  out  administration  de  bonis  non  of  A.  brought  his  bill  of 
revivor  to  revive  these  proceedings. 

The  defendant  pleads  the  statute  of  limitations,  and  that  above  six 
years  had  passed  after  the  death  of  the  first  administrator  and  the 
plaintiff's  taking  out  letters  of  administration,  before  the  filing  of  the  bill 
of  revivor. 

Lord  Chancellor  [Macclesfield]  :  The  statute  of  limitations  speaks 
nothing  of  bills  in  equity,  yet  these  are  construed  to  be  within  it.  The 
case  of  not  reviving  a  decree  which  is  only  to  account,  is  within  all  the 
mischief  designed  to  be  prevented,  viz.  to  sue  a  man  after  his  vouchers 
may  have  been  lost,  or  his  witnesses  dead.  For  if  the  party  may  delay 
six  years  before  he  revives  his  bill,  he  may  by  the  same  reason  forbear 
twenty-six,  thirty-six  or  forty-six  years.  There  can  be  no  doubt  but  that 
if  this  were  only  a  bill  and  answer,  and  the  suit  abated,  the  executor  must 
bring  his  bill  of  revivor  within  six  years,  else  the  suit  would  be  barred. 
Now  the  reason  holds  still  as  strongly  in  case  of  a  decree  to  account, 
which  is  in  nature  of  a  judgment  qtiod  computet;  where,  if  the  plaintiff 
had  died,  his  executor  or  administrator  could  not  formerly  carry  it  on, 
as  now  by  the  late  statute  he  may;  and  though  it  may  seem  a  material 
objection,  that  when  there  is  a  decree  to  account,  the  defendant  as  well 
as  plaintiff  may  revive;  it  would  however  be  very  hard  for  equity  to  force 
a  man  to  revive  a  suit  against  himself  at  the  same  time  that  he  swears 
he  owes  nothing. 

Therefore  let  the  plaintiff  amend  his  bill,  and  the  defendant  his  answer, 
to  bring  the  matter  more  fully  before  the  court. 

After  which  the  defendant  died,  and  one  Beeclier  administering  to  him, 
the  plaintiff  brought  another  bill  of  revivor;  whereupon  the  defendant 
Beecher  pleaded  the  statute  of  limitations,  and  coming  to  be  argued  be- 
fore lord  chancellor  Ki7ig  in  Mich.  1727,  his  lordship  disallowed  the  plea, 
saying  that  a  bill  of  revivor  after  a  decree  to  account,  was  in  nature  of  a 
sci.  fa.  and  not  within  or  barrable  by  the  statute  of  limitations;  though 
the  demand  seemed  to  be  a  very  stale  one,  and  not  to  be  countenanced. 


HUET  V.  FLETCHER. 
In  Chancery,  before  Lord  Chancellor  Hardavicke,  1739. 

[1  Athjns  4G7.] 

The  fiiflior  of  t])o  phiintiff  dies  intestate,  the  mother  possesses  herself 
of  all  his  personal  estate,  the  son  acquiesced  for  40  years  after  the  death 
of  his  father,  and  upon  the  mother's  dying,  accepts  of  a  legacy  under  her 


CHAP.  IV.]  SMITH  V.  CLAY  379 

will,  in  value  at  least  equal  to  two  thirds  of  what  his  father  left,  and  was 
contented  for  some  time,  but  brings  his  bill  now  against  the  executor  of 
the  mother  to  account  for  all  the  personal  estate  of  the  father  which  came 
to  her  hands. 

Lord  Chancellor  [IIaudwicke.]  These  are  a  sort  of  bills  that  deserve 
the  utmost  discouragement  from  this  court,  to  oblige  an  executor  to  ac- 
count for  a  personal  estate,  which,  through  the  great  length  of  time,  he 
is  utterly  incapable  of  doing,  besides  too,  a  personal  estate  of  a  third 
person,  and  that  did  not  belong  to  his  testatrix,  and  where  the  plaintiff 
himself  has  also  accepted  of  a  legacy  under  the  will  of  his  mother,  and 
acquiesced  for  a  considerable  time,  and  therefore  to  deter  others  from 
such  frivolous  and  vexatious  suits,  I  will  dismiss  the  bill  with  costs.' 


Smith  v.  Clay  (1767)  1  Bro.  C.  C.  640  (s.  c.  2  Amh.  645).— Lord  Chan- 
cellor Ca]\[den  :  This  bill  of  review  is  between  thirty  and  forty  years 
after  the  decree  pronounced. 

There  is  a  manifest  error  upon  the  face  of  the  record. 

The  question  upon  this  petition  is,  whether  it  is  barred  by  length  of 
time. 

I  am  of  opinion  it  is. 

It  would  be  an  useless  curiosity  to  trace  backwards  the  origin  of  this 
proceeding. 

It  is  at  this  time  perfectly  understood. 

It  is  in  nature  of  a  writ  of  error,  to  reverse  a  decree,  for  error  apparent 
upon  the  record. 

This  is  the  bill  of  review  now  before  me,  and  to  this  my  opinion  shall 
be  confined. 

There  are  two  questions. 

First,    What  period  of  time  is  a  bar  to  a  bill  of  review  ? 

Second,    From  what  time  this  period  shall  be  computed? 

To  the  first  question,  the  answer  here  is  easy. 

Twenty  years  is  the  period. 

Fdwards  v.  Carrol  (5  Bro.  P.  C.  466),  is  decisive,  and  not  now  open  to 
argument. 

A  court  of  equity,  which  is  never  active  in  relief  against  conscience,  or 

'  Francis  in  his  Maxims,  p.  38,  cites  a  number  of  earlier  cases  decided  on 
this  principle.  Among  them,  the  following  may  be  noted:  Winchcomb  v.  Hall 
(1630)  1  Rep.  in  Ch.  40  [after  twenty  years  and  two  purchasers,  the  court 
will  not  examine  if  the  ancestor  was  nan  compos  mentis]  ;  Coles  v.  Emerson 
(1635)  id.  78  [a  bond  is  conceived  satisfied,  it  not  being  demanded  in  22  years, 
and  must  be  delivered  up  and  cancelled];  Godfrey  v.  Thorn  (1635)  id.  88 
[to  the  same  efl'ect  the  bond  here  being  23  years  old];  Hales  v.  Hales  (1637) 
id.  105  [a  mortgage  held  unenforceable  on  which  no  demand  had  been  made 
within  forty  years]. 


380  SMITH  V.  CLAY  [part  i. 

public  convenience,  has  always  refused  its  aid  to  stale  demands,  where 
the  party  slept  upon  his  right  and  acquiesced  for  a  great  length  of  time. 

Nothing  can  call  forth  this  Court  into  activity,  but  conscience,  good 
faith,  and  reasonable  diligence;  where  these  are  wanting,  the  Court  is 
passive,  and  does  nothing. 

Laches  and  neglect  are  always  discountenanced,  and  therefore,  from  the 
beginning  of  this  jurisdiction,  there  was  always  a  limitation  to  suits  in 
this  Court. 

Therefore,  in  Fitter  v.  Lord  Macclesfield,  Lord  North  said,  rightly, 
that  though  there  was  no  limitation  to  a  bill  of  review,  yet,  after  twenty- 
two  years,  he  would  not  reverse  a  decree  but  upon  very  apparent  error. 

"  Expedit  reipuhlicoe  ut  sit  finis  litium,"  is  a  maxim  that  has  pre- 
vailed in  this  Court  in  all  times,  without  the  help  of  an  act  of  Parliament. 

But,  as  the  Court  has  no  legislative  authority,  it  could  not  properly 
define  the  time  of  bar,  by  a  positive  rule,  to  an  hour,  a  minute,  or  a  year; 
it  was  governed  by  circumstances. 

But  as  often  as  Parliament  had  limited  the  time  of  actions  and  reme- 
dies to  a  certain  period,  in  legal  proceedings,  the  Court  of  Chancery 
adopted  that  rule,  and  applied  it  to  similar  cases  in  equity. 

For  when  the  legislature  had  fixed  the  time  at  law,  it  would  have  been, 
preposterous  for  equity  (which,  by  its  own  proper  authority,  always  main- 
tained a  limitation)  to  countenance  laches  beyond  the  period  that  law 
had  been  confined  to  by  Parliament. 

And  therefore,  in  all  cases  where  the  legal  right  has  been  barred  by 
Parliament,  the  equitable  right  to  the  same  thing  has  been  concluded  by 
the  same  bar. 

Thus,  the  account  of  rents  and  profits,  in  a  common  case,  shall  not  be 
carried  beyond  six  years. 

Nor  shall  redemption  be  allowed  after  twenty  years'  possession  in  a 
mortgagee. 

Jenner  and  Tracey,  1731.     (Marginal  notes  on  3  Will.  287.) 

Same  thing  in  Belch  v.  Harvey  (ubi  supra),  adding,  that  the  statute, 
having  given  ten  years  after  disability,  that  ought  to  be  observed. 

By  the  like  analogy,  the  House,  in  Edwards  v.  Carrol,  determined  that 
twenty  years  should  bar  a  bill  of  review,  because  the  statute  of  Wil.  3, 
had  barred  all  writs  of  error  after  that  period.' 

''I'll is  extract  of  the  opinion  is  taken  from  a  foot-note  in  Belt's  edition  of 
r.rnwn's  Chancery  Cases,  p.  640.  It  is  tliere  said:  "This  note  is  from  Lord 
Canulcn's  own  hand-writing  in  his  notebook."  The  report  in  Ambler  is  much 
less  satisfactory. 


CHAP.  IV.]  HOVENDEN  v.  ANNESLEY  381 


HOVENDEN  v.  ANNESLEY. 

In  the  High  Court  of  Ciiaxceuy,  Iheland,  before  Lord  Chancellor 

Kedesdale,  180G. 

[2  ScJwales  and  Lefroy  *607.] 

[The  facts  of  the  case  are  many  and  very  much  involved,  but  the 
essential  points  may  be  thus  summarized:  In  the  11th  year  of  his  reign. 
King  Charles  I.  granted  certain  estates  in  Ireland  to  one  Thomas  Hoven- 
den,  on  whose  death,  1641,  they  descended  to  his  son  John.  John,  a 
papist,  taking  part  in  the  Rebellion,  his  lands  were  declared  forfeited  and 
they  were  granted  by  Cromwell's  government  to  Major  William 
Walker.  Shortly  after  the  Restoration,  Walker  granted  all  the  estates 
to  Arthur  Annesley,  taking  back  a  lease  for  99  years.  Under  Charles' 
declaration  for  the  settlement  of  Ireland,  Thomas  Hovenden,  son  of  John, 
the  papist,  made  claim  to  a  part  of  the  estates,  and  the  Commissioners 
declared  in  his  favor.  By  royal  grant,  Annesley  was  later  given  another 
part.  The  sons  of  William  Walker,  the  lessee,  granted  to  the  great  grand- 
father of  the  defendant  Saunders  the  balance  of  the  99-year  lease.  The 
other  defendants  are  descended  from  the  original  Annesley  to  whom 
Walker  granted.  The  plaintiff  is  descended  from  Thomas  Hovenden, 
the  innocent  papist,  who  was  let  in  after  the  Restoration,  and  claims 
under  his  will.  The  plaintiff  seeks  to  have  transferred  to  him  the  pos- 
session of  the  estates  "  on  the  ground  of  equitable  rights  vested  in  him 
arising  out  of  legal  rights,  which  he  states  to  have  belonged  to  those 
under  whom  he  derives  his  title,  and  which  legal  rights  have  been  affected 
by  acts  done  by  those  persons,  rendering  the  assertion  of  those  rights  im- 
possible at  law ;  and  these  acts  of  his  ancestors  affecting  their  legal 
rights  are  the  foundation  of  the  plaintiff's  coming  into  a  court  of  equity: 
for  otherwise  the  claim  would  be  wholly  in  law."  The  lower  court  dis- 
missed the  bill.] 

Lord  Chancellor  [Redesdale]  :'  ^  *  *  The  last  consideration  in 
this  case  is  the  simple  effect  of  lapse  of  time;  and  this  is  very  material 
in  respect  of  various  other  cases  as  well  as  this.  The  old  maxim  of  law 
is,  vigilantibus  non  dormientihus  inservit  lex.  People  are  not  to  sleep  on 
their  titles :  it  would  be  injurious  to  the  public  that  they  should.  There 
must  not  be  perpetual  litigation  on  the  subject  of  title;  according  to  the 
maxim  upon  which  Lord  Camden  acted  in  Smith  v.  Clay,  3  Bro.  C.  C. 
639,  note,  expedit  reipuhlicw  id  sit  finis  litium.  Lands  which  are  the  sub- 
ject of  litigation,  become  waste  for  want  of  cultivation,  and  therefore  it 
has  been  a  fundamental  law  of  state  policy  in  all  countries,  and  at  all 
times,  that  there  should  be  some  limitation  of  time  beyond  which  the 

'  Only  so  much  of  the  opinion  is  given  as  deals  with  the  question  of  laches 
in  equity.  ^ 


382  HOVENDEN  v.  ANNESLEY  [part  i. 

question  of  title  should  not  be  agitated.  In  this  country  the  limitation 
has  been  fixed  (except  in  writs  of  right,  and  writs  depending  on  questions 
of  mere  title)  at  twenty  years. 

But  it  is  said  that  courts  of  equity  are  not  within  the  statute  of 
limitations.  This  is  true  in  one  respect;  they  are  not  within  the  words 
of  the  statutes,  because  the  words  apply  to  particular  legal  remedies :  but 
they  are  within  the  spirit  and  meaning  of  the  statutes,  and  have  been 
always  so  considered.  I  think  it  is  a  mistake  in  point  of  language,  to 
say  that  courts  of  equity  act  merely  hy  analogy  to  the  statutes;  they  act 
in  obedience  to  them.  The  statute  of  limitations,  applying  itself  to  cer- 
tain legal  remedies,  for  recovering  the  possession  of  lands,  for  recovering 
of  debts,  &c.  Equity,  which  in  all  cases  follows  the  law,  acts  on  legal 
titles,  and  legal  demands,  according  to  matters  of  conscience  which  arise, 
and  which  do  not  admit  of  the  ordinary  legal  remedies :  nevertheless,  in 
thus  administering  justice,  according  to  the  means  afforded  by  a  court  of 
equity,  it  follows  the  law. 

The  true  jurisdiction  of  courts  of  equity  in  such  cases,  is  to  carry  into 
execution  the  principles  of  law,  where  the  modes  of  remedy  afforded  by 
courts  of  law  are  not  adequate  to  the  purposes  of  justice,  to  supply  a  defect 
in  the  remedies  afforded  by  courts  of  law.  The  law  has  appointed  certain, 
simple  modes  of  proceeding,  which  are  adapted  to  a  great  variety  of  cases; 
but  there  are  cases,  under  peculiar  circumstances  and  qualifications,  to 
which,  though  the  law  gives  the  right,  those  modes  of  proceeding  do  not 
apply.  I  do  not  mean  to  say  that,  in  the  exercise  of  this  jurisdiction, 
courts  of  equity  may  not,  in  some  instances,  have  gone  too  far;  though 
they  have  been  generally  more  strict  in  modern  times.  So,  courts  of  law, 
fancying  that  they  had  the  means  of  administering  full  relief,  have  some- 
times proceeded  in  cases  which  were  formerly  left  to  covirts  of  equity: 
and,  at  one  period,  this  also  seems  to  have  been  carried  too  far. 

I  think,  therefore,  courts  of  equity  are  bound  to  yield  obedience  to  the 
statute  of  limitations  upon  all  legal  titles  and  legal  demands,  and  cannot 
act  contrary  to  the  spirit  of  its  provisions.  I  think  the  statute  must  be 
taken  virtually  to  include  courts  of  equity;  for  when  the  legislature  by 
statute  limited  the  proceedings  at  law  in  certain  cases,  and  provided  no 
express  limitations  for  proceedings  in  equity,  it  must  be  taken  to  have 
contemplated  that  equity  followed  the  law,  and,  therefore,  it  must  be 
taken  to  have  virtually  enacted  in  the  same  cases  a  limitation  for  courts 
of  equity  also. 

This  is,  I  think,  established  in  a  variety  of  cases,  which  prove  that 
courts  of  equity  have  constantly  acknowledged  it  to  be  the  rule  by  which 
thoy  are  bound. 

Ill  Smith  V.  Clay,  in  Amhl.  045.  (but  of  which  a  note  is  given  in  3  Bro. 
(;.  ('.  689.  which  I  know  was  taken  from  Lord  Camden's  note  book,  where 
he  had  inserted  it  for  the  purpose  of  giving  judgment,  and  the  original 
of  which  I  have  seen  in  his  own  hand- writing.  Lord  Camden  examined 
tlic  whole  (luestion  with  that  accuracy  which  peculiarly  belonged  to  him. 


CHAP.  IV.]  HOVENDEN  v.  ANNESLEY  383 

The  question  was,  whether  a  bill  of  review  could  be  brought  after  twenty 
years :  there  was  manifest  error  on  the  face  of  the  record ;  yet  Lord 
Camden  held  it  barred  by  length  of  time.  A  bill  of  review,  founded  on 
new  evidence,  (as,  for  instance,  the  concealment  of  a  deed,)  might  give  a 
new  equitable  jurisdiction ;  and  therefore  Lord  Camdi^n  carefully  dis- 
tinguished (See  Amh.  647)  such  a  case  from  that  before  him. 

I  have  looked  at  a  great  number  of  cases  for  the  purpose  of  seeing  how 
far  this  rule  has  been  adopted  at  diiferent  times;  and  I  think  it  is  im- 
possible not  to  see  that  courts  of  equity  have  constantly  guided  them- 
selves by  this  principle,  that  wherever  the  legislature  has  limited  a  period 
for  hiw  proceedings,  equity  will,  in  analogous  cases,  consider  the 
equitable  rights  as  bound  by  the  same  limitation. 

In  Ilollingsworth's  case,  1  P.  Wms.  742,  before  Lord  Macclesfield, 
(an  able  judge  both  in  law  and  equity,  as  ever  sat  on  the  bench,)  there 
were  exceptions  to  the  master's  report ;  one  of  the  parties  died ;  a  bill  of 
revivor  was  brought,  and  the  statute  of  limitations  pleaded.  The  decision 
of  Lord  Macclesfield  was  in  favour  of  the  bill.  "  The  statute  of  limita- 
tions speaks  nothing  of  bills  in  equity;  yet  they  are  construed  to  be 
within  it :"  (that  is,  they  are  within  it  according  to  their  nature.)  How- 
ever, he  conceived  that  in  that  case  there  were  circumstances,  which,  had 
they  been  brought  before  the  court,  would  have  taken  the  case  out  of  the 
statute,  and  therefore  he  allowed  both  parties  to  amend.  Upon  the 
amended  bill,  there  was  another  plea  of  the  statute  of  limitations,  and  the 
case  came  before  Lord  King,  who  disallowed  the  plea;  saying  that  a  bill 
of  revivor,  after  a  decree  to  account,  was  in  the  nature  of  a  scire  facias, 
and  not  within  or  barrable  by  the  statute :  so  that  he  still  proceeded  on 
the  same  idea,  that  the  statute  was  to  be  extended  to  courts  of  equity  as 
well  as  courts  of  law,  though  the  latter  only  are  mentioned  by  the  statute. 

In  Lockey  v.  Lockey,  Prec.  Ch.  518,  the  same  doctrine  occurs.  "  The 
Lord  Chancellor  was  clearly  of  opinion  that  where  one  receives  the  profits 
of  an  infant's  estate,  and,  six  years  after  his  coming  of  age,  he  brings  a 
bill  for  an  account,  the  statute  of  limitations  is  a  bar  to  such  suits,  as 
it  would  be  to  an  action  of  account  at  common  law."  That  is  also  a  case 
in  which  Lord  Macclesfield  considered  a  court  of  equity  barred  as  much 
as  a  court  of  law  by  the  statute  of  limitations.  He  observed,  that  the 
trust  which  is  supposed  in  a  court  of  equity  in  a  person  who  receives  the 
profits  of  an  infant's  estate,  is  not  a  trust  of  that  nature  that  the  statute 
of  limitarions  does  not  apply  to.  Now,  I  take  it  that  the  position  which 
has  been  laid  down,  "  that  trust  and  fraud  are  not  within  the  statute,"  is 
qualified  just  as  he  qualifies  it  here:  that  is,  if  a  trustee  is  in  possession^ 
and  does  not  execute  his  trust,  the  possession  of  the  trustee  is  the  posses- 
sion of  the  cestui  cine  trust;  and  if  the  only  circumstance  is,  that  he  does 
not  perform  his  trust,  his  possession  operates  nothing  as  a  bar,  because 
his  possession  is  according  to  his  title:  just  as  in  the  case  of  a  lessee  for 
years,  though  he  does  not  pay  his  rent  for  50  years,  his  possession  is  no 
bar  to  an  ejectment  after  the  expiration  of  this  term,  because  his  posses- 


384  HOVENDEN  v.  ANNESLEY  [part  i. 

sion  is  according  to  the  right  of  the  party  against  whom  he  seeks  to  set 
it  up.  But  the  question  of  fraud  is  of  a  very  different  description ;  that 
is  a  case  where  a  person  who  is  in  possession  by  virtue  of  that  fraud  is 
not,  in  the  ordinary  sense  of  the  word,  a  trustee,  but  is  to  be  constituted 
a  trustee  by  a  decree  of  a  court  of  equity,  founded  on  the  fraud,  and  his 
possession  in  the  mean  time  is  adverse  to  the  title  of  the  person  who  im- 
peaches the  transaction,  on  the  ground  of  fraud :  and  the  decisions  seem 
to  have  been  in  perfect  conformity  to  that  idea.  With  respect  to  the  case 
of  Booth  V.  Lord  Warrington,  1  Bro.  Pari.  Cas.  455,  it  has  been  said,  on 
the  authority  of  that  case,  that  length  of  time  will  not  bar  in  case  of 
fraud;  but  that  is  taken  up  without  qualification,  and  without  a  just  view 
of  that  case.  The  decision  in  that  case  was  of  this  description;  that  as 
fraud  is  a  secret  thing,  and  may  remain  undiscovered  for  a  length  of 
time,  during  such  time  the  statute  of  limitations  shall  not  operate;  be- 
cause until  discovery,  the  title  to  avoid  it  does  not  completely  arise. 
That  I  take  to  be  the  true  ground  of  the  case  of  Booth  v.  Lord  Warring- 
ton, where  the  house  of  lords  held  that  the  discovery  of  the  fraud,  being 
alleged  to  be  at  a  subsequent  period,  and  arising  out  of  circumstances 
collateral,  and  it  being  established  that  such  was  the  fact,  a  court  of 
equity  was  well  warranted  in  avoiding  the  transaction,  notwithstanding 
the  statute  of  limitations:  for,  pending  the  concealment  of  the  fraud, 
the  statute  of  limitations  ought  not  in  conscience  to  run;  the  conscience 
of  the  party  being  so  aifected  that  he  ought  not  to  be  allowed  to  avail  him- 
self of  the  length  of  time:  but  after  the  discovery  of  the  fact,  imputed 
as  fraud,  the  party  has  a  right  to  avail  himself  of  the  statute;  he  has  a 
right  to  say,  "  you  shall  not  bring  this  matter  into  discussion  after  such  a 
length  of  time,  when  it  is  only  through  your  own  neglect  that  you  did  not 
do  so  within  the  time  limited  by  the  statute." 

This  is  a  good  deal  illustrated  in  a  case  of  Weston  v.  Cartwright,  in 
a  book  of  no  great  authority.  Select  Cases  in  Chancery,  Sel.  Cas.  in  Chan- 
cery, 34.  2  Eq.  Abr.  10  pi.  11,  the  point  appears  more  from  the  argu- 
ment of  counsel  than  from  any  decision  that  is  reported.  That  was  a  case 
where  Lord  King  held  that  notwithstanding  a  fraud,  the  court,  after  a 
length  of  time,  ought  not  to  investigate  the  subject.  It  was  insisted  that 
the  plaintiff's  demand  was  barred  by  a  length  of  time;  he  answered,  that 
it  was  a  case  of  fraud,  and  that  the  statute  of  limitations  did  not  apply; 
and  Booth  and  Lord  Warrington  was  mentioned :  but  to  this  the  reply 
was,  that  in  that  case  there  was  a  charge  that  the  fraud  was  discovered 
within  six  years:  and  payment  was  decreed  to  one,  though  refused  to  the 
other. 

Tn  the  South  Sea  Company  v.  Wymond.^ell.  3  P.  Wms.  143,  this  point  is 
discussed,  and  on  the  same  ground;  that  in  a  bill  impeaching  accounts  for 
fraud,  it  must  be  charged  that  the  fraud  was  discovered  within  six  years. 
"  Tf  the  fraud  was  known  and  discovered  above  six  years  before  exhibiting 
the  lijll,  Ihis,  though  a  fraud,  would  be  barred  by  the  statute  of  limita- 
tions;" that  is,  the  discovery  of  the  fraud  gave  a  jurisdiction  to  equity. 


CHAP.  IV.]  HOVENDEN  v.  ANNESLEY  385 

and  a  new  right  of  action  accrued  at  that  time;  and,  therefore,  if  the 
l^laintitf  did  not  proceed  within  six  years  from  that  time,  he  ought  to  be 
barred. 

Bicknell  v.  Gough,  3  Atk.  538.  shows  that  Lord  IIardwicke  thought  the 
statute  of  limitations  (if  properly  pleaded)  might  be  pleaded  in  bar  of  a 
bill  brought  for  relief,  though  not  for  discovery;  because  the  very  dis- 
covery souglit  might  show  that  the  right  of  action  had  accrued  within  the 
time.  Lord  IIakuwkkk  thought  that  the  ijlea,  if  properly  pleaded,  would 
have  been  a  good  plea  to  a  bill  for  relief  on  the  ground  of  fraud,  in  con- 
formity to  the  cases  determined  by  Lord  King  and  Lord  Macclesfield. 

This  brings  me  to  consider  the  case  finally  in  another  point  of  view. 
Supposing  the  plaintiff  might  have  had  relief  on  the  ground  of  fraud, 
if  he  had  pursued  his  title  with  due  diligence,  the  answer  is,  it  appears 
that  the  alleged  fraud  was  discovered  by  the  party  at  least  so  long  ago, 
that  in  1735  a  bill  was  filed,  (by  Thomas  Hovenden,  the  son  of  Walter, 
immediately  on  attaining  full  age,  against  Morley  Saunders  and  others, 
impeaching  the  deed  of  172G  as  fraudulent,  and  praying  to  be  decreed  to 
the  possession,)  imputing  the  fraud,  and  impeaching  the  transaction  on 
the  same  ground.  Therefore,  the  position  that  fraud  is  not  within  the 
statute,  because  it  is  a  secret  thing,  which  cannot  be  discovered,  is  not 
applicable  to  this  case;  for  the  fraud  imputed  to  this  case  is  represented 
in  the  bill  of  1735 ;  that  is,  it  is  there  stated  that  the  release  was  a  release 
which  the  party  conceived  he  had  a  right  to  impeach  on  the  ground  of 
fraud,  and  for  that  purpose  to  obtain  from  the  opposite  party  a  discovery 
of  all  the  facts  and  circumstances  demonstrating  the  fraud.  This  was 
known  to  the  person  claiming  in  1735.  Therefore,  whatever  right  of 
action  might  have  accrued  on  discovering  any  particulars  of  the  fraud 
different  from  what  were  apparent  in  1726,  must  be  taken  to  have  accrued 
in  1735;  but  was  not  pursued  in  1794,  a  period  of  near  sixty  years  after 
the  first  bill  filed.  I  hold  it  utterly  impossible  for  the  court  to  act  in  such 
a  case.  A  court  of  equity  is  not  to  impeach  a  transaction  on  the  ground 
of  fraud,  where  the  fact  of  the  alleged  fraud  was  within  the  knowledge 
of  the  party  60  years  before.  On  the  contrary,  I  think  the  rule  has  been 
so  laid  down,  that  every  new  right  of  action  in  equity  that  accrues  to  the 
party,  whatever  it  may  be,  must  be  acted  upon  at  the  utmost  within  20 
years.  Thus,  in  the  case  of  redemption  of  a  mortgage ;  if  the  mortgagee 
has  been  in  possession  for  a  great  length  of  time,  but  has  acknowledged 
that  his  possession  was  as  mortgagee,  and,  therefore,  liable  to  redemption, 
a  right  of  action  accrues  upon  that  acknowledgment.  But  if  not  pur- 
sued within  20  years,  it  is  like  the  case  at  law  of  a  promise  of  payment 
beyond  the  six  years,  and  non  assumpsit  infra  sex  annos  pleaded:  and  so 
in  every  case  of  equitable  title,  (not  being  the  case  of  a  trustee,  whose  pos- 
session is  consistent  with  the  title  of  the  claimant,)  it  must  be  pursued 
Avithin  20  years  after  the  title  accrues.  This  was  so  considered  by  Lord 
Camden,  in  Smith  v.  Clay,  referring  to  Jenner  v.  Tracy,  3  P.  Wms.  287. 
note  (B)  :  that  the  same  length  of  time  should  bar  a  redemption  that 


386  HOVENDEN  v.  ANNESLEY  [part  i. 

would  bar  any  other  equity.  In  Floyer  v.  Lovington,  1  P.  Wms.  270,  it 
is  laid  down  by  Sir  Joseph  Jekyll,  that  as  the  statute  of  limitations  had 
in  the  case  of  lands,  after  20  years'  possession,  barred  the  plaintiff  of  his 
entry  or  ejectment,  so  the  court  of  equity,  in  imitation  of  that  law,  would 
not  allow  the  mortgagor  to  redeem  the  mortgage  after  the  mortgagee  had 
been  20  years  in  possession.  It  seems  to  me,  therefore,  that  the  statute 
of  limitations  would  of  itself  be  a  complete  bar  to  the  relief  sought  in 
this  bill,  as  it  is  impossible  that  any  new  right  of  action  could  have 
accrued  since  1735. 

In  the  case  of  Lord  Deloraine  v.  Brown,  3  Bro.  C.  C.  633,  an  attempt 
was  made  to  take  advantage  of  the  length  of  time  by  demurrer.  The  de- 
cision of  that  case,  as  reported  by  Bnown,  does  not  convey  much  satis- 
faction to  my  mind;  and  perhaps  the  note  which  follows  will  account  for 
the  judgment  of  the  court  being  delivered  somewhat  in  a  hurry.  (It  was 
the  last  case  decided  by  Lord  Thurlow,  before  his  resignation  of  the  seals 
in  June,  1792.)  The  first  judgment,  as  reported,  is  hardly  intelligible, 
and  then  there  is  an  explanation  given  the  next  day :  it  is,  however,  rather 
contrary  to  what  Lord  Kenyon  determined  at  the  Cockpit  in  Beckford 
V.  Close,  3  Bro.  C.  C.  644.  S.  C.  cited  4  Ves.  jun.  476,  which  is  cited  in 
that  case.  This  arose,  perhaps,  from  Lord  Tiiurlow's  not  having,  under 
the  peculiar  circumstances  in  which  he  stood,  sufficiently  considered  that 
this  was  matter  of  the  law  of  a  court  of  equity ;  that  is,  a  rule,  which  is  to 
be  considered  as  the  law  of  a  court  of  equity.  Lord  Kenyon  held.  Vide 
4  Ves,  jun.  476,  that  a  demurrer  to  a  bill,  because  it  did  not  show  a  good 
title  to  redemption  within  20  years,  was  a  good  demurrer :  Wliy  ?  because 
it  was  the  rule  of  the  court  that  no  redemption  should  be  allowed  after 
twenty  years ;  and  therefore  the  party  should  be  put  to  bring  his  case  by 
his  bill  within  that  rule.  Lord  Thurlow's  opinion  was  given  in  a  hurry; 
and  many  cases  were  then  pending,  in  which  much  injury  might  have 
arisen  to  the  parties,  if  the  judgments  had  not  then  been  given:  but  it 
seems  to  me  that  Lord  Kenyon's  opinion  is  perfectly  tenable  on  Lord 
Thurlow's  own  qualification;  that  is,  that  when  a  party  does  not  by  his 
bill  bring  himself  within  the  rule  of  the  court,  the  other  party  may  by 
demurrer,  demand  judgment  whether  he  ought  to  be  compelled  to  answer. 
If  the  case  of  the  plaintiff,  as  stated  in  the  bill,  will  not  entitle  him  to  a 
decree,  the  judgment  of  the  court  may  be  required  by  demurrer,  whether 
the  defendant  ought  to  be  compelled  to  answer  the  bill ;  that  I  take  to  be 
matter  of  the  law  of  a  court  of  equity,  to  be  decided  according  to  its 
rules  and  principles.  However,  it  is  clear  that  in  this  case  of  Lord 
Deloraine  v.  Brown,  Lord  Thurlow  was  anxious  that  his  overruling  the 
demurrer  should  not  bo  considered  as  deciding  upon  the  case;  and  the 
cause  never  came  on  again.  Lord  Deloraine  being  advised  that  the  length 
of  time  was  a  bar. 

This  subject  came  again  into  consideration  in  Hercy  v.  Dinwoody, 
4  Bro.  C.  C.  257 :  that  was  a  case  to  which  the  statute  of  limitations  could 
not  be  said  directly  to  apply;  for  there  was  a  decree  to  account;  it  was 


CHAP.  IV.]  ELLISON  V.  MOFFATT  387 

not  proceeded  upon  with  effect;  there  was  laches  on  all  sides;  it  was  a 
case,  therefore,  in  which  the  court  was  to  proceed  according  to  its  dis- 
cretion, rather  than  according  to  any  rule  in  analogy  to  the  statute  of 
limitations.  Lord  Alvanley,  in  deciding  that  case,  was  of  opinion,  on 
grounds  of  public  policy,  that  he  ought  not  to  permit  the  account  sought 
to  be  carried  on,  because  the  party  who  otherwise  would  have  been  en- 
titled to  it,  had  been  guilty  of  such  laches  as  to  make  it  impossible  to 
take  the  account  fairly  and  justly.  He  did  not  say  in  that  case  what 
length  of  time  would  be  sufficient  to  bar  the  claim,  because  it  was  a  case 
so  encumbered,  that  he  conceived  the  court  was  to  act  according  to  its 
discretion  :  the  statute  was  not  pleaded,  and  all  parties  had  slept  upon  their 
rights.  The  length  of  time  during  which  the  plaintiff  in  that  case  had 
slept,  was  from  1756  to  1790 ;  and  in  this  case  the  plaintiff  has  slept  from 
1726  to  1794,  and  clearly  with  full  notice  from  1735. 

On  these  grounds  I  think  it  would  be  impossible  for  the  court  to  inter- 
fere, though  the  rights  of  the  plaintiff  were  ever  so  clear.  It  ought  not 
to  interfere,  because  I  think  this  is  a  case  to  which  the  statute  of  limita- 
tions directly  applies:  but  I  think  it  ought  not  to  interfere,  even  if  the 
statute  of  limitations  did  not  exist;  and  if  the  question  depended  merely, 
on  the  discretion  of  the  court.  It  never  can  be  a  sound  discretion  in  the 
court  to  give  relief  to  a  person  who  has  slept  on  his  rights  for  such  a 
length  of  time :  for  though  it  is  said,  and  truly,  that  the  plaintiffs  in  this 
suit,  and  those  under  whom  they  claim,  were  persons  embarrassed  and 
reduced  by  the  fraud  of  others,  yet  the  court  cannot  act  upon  such  cir- 
cumstances. If  it  did,  there  would  be  an  end  of  all  limitation  of  actions 
in  the  cases  of  distressed  persons ;  for  if  relief  might  be  given  after 
twenty  years,  on  the  ground  of  such  distress,  so  might  it  after  thirty, 
forty  or  fifty;  there  would  be  no  limitation  whatever,  and  all  property 
would  be  thrown  into  confusion.     *     *     * 

On  these  grounds,  I  think  the  bill  ought  to  be  dismissed.  On  the  ques- 
tion of  costs,  I  think  I  ought  not  to  give  costs  against  this  unfortunate 
claimant,  who  certainly  had  a  great  colour  of  claim,  and  is,  perhaps, 
barred  only  by  length  of  time;  especially  as  the  principal  defendants  are 
persons  of  considerable  fortune.  As  to  Lord  MuJgravc,  I  must  give  him 
his  costs :  I  do  not  see  why  he  is  brought  before  the  court :  it  is  not  to 
assist  the  plaintiff,  but  to  dispute  the  title  with  the  co-defendants,  and  to 
hold  up  the  colour  of  his  title  to  their  prejudice.  But  he  is  clearly 
barred  by  length  of  time,  and  adverse  possession,  even  if  he  had  a  right  to 
claim  under  the  title  supposed  by  the  bill. 


Ellison  v.  Moffatt  (1814)  1  Johns.  Ch.  46,  48. — The  Chancellor 
[Kent]  :  The  parties  lived  in  the  same  county,  and,  without  accounting 
for  the  delay,  the  plaintiff  suffered  a  period  of  26  years  to  elapse,  from  the 
termination  of  t\\Q.  American  war,  to  the  time  of  filing  his  bill.    The  offer 


388  CALHOUN  v.  MILLAED  [part  i. 

made  by  the  executors  being  for  peace,  and  without  any  recognition  of 
the  justness  of  the  demand,  and  being  rejected  by  the  plaintiff,  cannot 
afiect  the  question. 

It  would  not  be  sound  discretion  to  overhale  accounts,  in  favour  of  a 
party  who  has  slept  on  his  rights  for  such  a  length  of  time;  especially, 
against  the  representatives  of  the  other  party,  who  have  no  knowledge  of 
the  original  transactions.  It  is  against  the  principles  of  public  policy, 
to  require  an  account,  after  the  plaintiff  has  been  guilty  of  so  great  ladies. 

The  bill  must  be  dismissed  on  the  ground  of  the  staleness  of  the  de- 
mand ;  but  without  costs. 


Calhoun  v.  Millard  (1890)  121  N.  Y.  69,  81.— [In  1872,  the  town  of 
Andes,  N.  Y.,  issued  to  a  railway  company  bonds,  due  in  thirty  years,  in 
exchange  for  stock.  These  bonds  were  sold  by  the  company,  some  of  them 
coming  into  the  hands  of  the  defendants.  For  nine  years  a  tax  was  levied 
by  the  town  to  keep  up  the  interest  on  these  bonds.  The  plaintiffs,  tax- 
payers of  the  town  of  Andes,  now  bring  this  action  asserting  that  the 
bonds  are  void,  and  asking  that  they  be  delivered  up  and  cancelled.  The 
action  was  brought  within  the  statutory  period  of  limitations  in  equitable 
actions.]  :^  Andrews,  J.'  *  *  *  It  is  and  always  has  been  the  prac- 
tice of  courts  of  equity  to  remain  inactive  where  a  party  seeking  their 
interference  has  been  guilty  of  unreasonable  laches  in  making  his  ap- 
plication. (Story's  Eq.  Jur.  §  1520.)  The  principle  is  stated  with  great 
force  and  clearness  by  Lord  Camden  in  Smith  v.  Clay  (2  Ambl.  6-45)  : 
"  Nothing  can  call  forth  this  court  into  activity  but  conscience,  good 
faith  and  reasonable  diligence.  Where  these  are  wanting  the  court  is 
passive  and  does  nothing.  Laches  and  neglect  are  discountenanced  and, 
therefore,  from  the  beginning  of  this  court,  there  was  always  a  limitation 
to  suits  in  this  court." 

Courts  of  equity,  it  has  been  said,  act  not  so  much  in  analogy  to,  as 
in  obedience  to  statutes  of  limitation  of  legal  actions,  because  where  the 
legal  remedy  is  barred,  the  spirit  of  the  statute  bars  the  equitable  remedy 
also. 

In  the  present  case,  the  cause  of  action  for  the  cancellation  of  the  bonds 
was  not  barred  by  the  ten  years'  statute  applicable  to  equitable  actions. 
But  a  period  of  nine  years  had  elapsed  after  the  bonds  were  issued,  before 
the  commencement  of  the  action.  But  we  apprehend  that  the  period  of 
limitation  of  equitable  actions,  fixed  by  the  statute,  is  not  where  a  purely 
equitable  remedy  is  invoked,  equivalent  to  a  legislative  direction  that  no 
period  short  of  that  time  shall  be  a  bar  to  relief  in  any  case,  or  precludes 
the  court  from  denying  relief  in  accordance  with  equitable  principles  for 
unreasonabh?  delay,  although  the  full  period  of  ten  years  has  not  elapsed 

'New  York  Code  Civil    Proccduro  §  .'JSS. 
'Only  \i  [lart  of  tlic  o})iiii(m  is  printed. 


CHAP.  IV.]  CALHOTJN  v.  MILLAED  389 

since  the  cause  of  action  accrued.  The  ten  years'  limitation  was  pri- 
marily designed  to  shield  defendants  (B.  &  N.  Y.  C.  11.  K.  Co.  Dudley, 
14  N.  Y.  3.52),  and  it  must  be  true  that  a  court,  in  the  exercise  of  its 
equitable  jurisdiction,  could  not  entertain  or  enforce  a  cause  of  action 
barred  by  the  statute,  and  not  within  any  exception,  acting  upon  any 
general  equitable  considerations.  But,  in  enforcing  purely  equitable 
remedies,  depending  upon  general  equitable  principles,  unreasonable  and 
inexcusal)lc  delay  is  an  element  in  the  plaintiiTs  case,  which  a  court  of 
equity  always  takes  into  consideration  in  exercising  its  discretion  to 
grant  or  refuse  relief,  and  is  not  a  mere  collateral  incident.  Where  there 
is  a  remedy  at  law,  whereby  the  plaintiff  can  prosecute  or  defend  his  legal 
right,  the  refusal  of  relief  leaves  the  parties  where  they  were.  If  there 
are  special  circumstances  which  may  change  the  situation  of  the  iilain- 
tiff  to  his  injury,  unless  the  equitable  remedy  is  interposed,  this  fact  may 
be  considered.  But  the  right  of  the  court  to  deny  relief  upon  equitable 
grounds,  for  long  delay,  although  short  of  the  statute  period  of  limitation, 
is  in  the  nature  of  a  defense,  and  is  not,  we  think,  taken  away  by  the 
statute.  There  may  be  a  well-founded  distinction  between  the  case  of  an 
application  for  an  equitable  remedy  in  aid  of,  or  to  enforce  a  legal  right 
not  barred  by  the  statute,  and  the  case  where  an  exclusively  equitable 
remedy  is  sought,  such  as  to  restrain  proceedings  at  law,  or  upon  the  prin- 
ciple quia  timet,  to  deprive  an  adversary  of  the  muniment  of  his  alleged 
legal  right,  which  he  inequitablj^  retains.  In  cases  of  the  latter  class,  long 
delay  or  acquiescence,  although  short  of  the  statute  period  for  the  limita- 
tion of  equitable  actions,  may  be  a  ground  for  refusing  relief.  (Pom.  Eq. 
Jur.  §  817.)  The  cancellation  of  securities  is  a  purely  equitable  remedy, 
and  cannot  be  claimed  as  an  absolute  right,  nor  is  it  applied  for,  or 
awarded  in  aid  of  a  legal  right  or  title. 

We  conclude,  therefore,  that  it  was  within  the  power  of  the  court  to 
dismiss  the  complaint,  so  far  as  relief  was  sought  for  a  cancellation  of 
the  bonds,  on  the  ground  of  delay  in  bringing  the  action.  The  circum- 
stances justified  the  conclusion  on  this  branch  of  the  case.  The  town  and 
the  taxpayers  permitted  the  bonds  to  be  dealt  with  and  taken  by  savings 
banks  and  others  for  nearly  ten  years,  not  only  without,  so  far  as  appears, 
a  word  of  warning  or  protest,  but  by  affirmative  acts  of  recognition,  en- 
couraged investment  therein  as  safe  and  valid  securities.  The  bonds, 
resting  on  the  adjudication  of  the  county  judge,  were  apparently  valid. 
The  legislature  has  still  the  power  to  ratify  them  and  make  them  valid 
obligations  of  the  town.  (Williams  v.  Town  of  Duanesburgh,  66  N.  Y. 
129;  Horton  v.  Town  of  Thompson,  71  id.  513;  Rogers  v.  Stephens,  86 
id.  623.)  They  are  now  in  the  hands  of  hona  fide  holders,  that  is,  of  per- 
sons who  have  paid  value  for  them  without  notice.  The  fact  that  if  the 
plaintiffs  are  defeated  here,  the  bonds  may  be  sued  upon  and  enforced  in 
another  jurisdiction,  constitutes  no  equitable  reason  for  maintaining  the 
action.     (Town  of  Venice  v.  Woodruff,  supra.y 

'And  see  Blakevi\  Gale,  1885,  L.  R.  31  Ch.  Div.  196. 


390  GEEGORY  v.  GREGORY  [part  i. 

GREGORY  V.  GREGORY. 

In  Chancery,  before  Sir  William  Grant,  1815. 

^Cooper's   Chancery   Cases   tempore  Eldon   201.] 

William  Gregory  by  Will  duly  executed,  dated  February  11,  1778, 
devised  his  freehold  Estate  in  Shalden,  subject  to  an  Annuity  of  £10,  to 
William  Gregory  his  Son,  and  his  freehold  Estates  in  Grewell  and 
Upnately  (subject  to  an  Annuity  of  £20,  to  William  Hornier  and  Jane  his 
Wife  for  their  Lives,)  to  his  Son  James  Gregory  and  Theophila  his  Wife 
and  his  Friends  Lyon  and  Cross  and  their  Heirs,  in  Trust  to  receive  the 
Rents  and  Profits  until  the  youngest  Child  of  James  Gregory  attained  21, 
and  then  as  to  the  said  Estate  in  Shalden,  to  sell  and  dispose  thereof,  and 
divide  the  Money  among  the  then  surviving  Children  of  James  Gregory 
and  the  Children  of  Testator's  Son  John  Gregory  deceased;  and  as  to 
the  Estates  at  Grewell  and  Upnately,  to  James  Gregory  for  Life,  and 
after  his  Decease  the  same  to  be  also  sold,  and  the  Money  to  be  equally 
divided  amongst  the  said  Testator's  said  Grand-children. 

James  Gregory  as  acting  Trustee  entered  into  the  Possession  of  the 
said  Estates,  and  continued  so  till  his  Death  in  1793.  Li  July  1793, 
shortly  before  his  Death,  James  Gregory  purchased  of  the  three  Children 
of  John  Gregory  who  were  then  all  of  Age  their  Shares  and  Interests 
under  the  said  Will  of  their  Grand-father  at  the  Price  of  £250  each, 
being  £750  for  the  whole,  and  by  Indentures  of  Lease  and  Release  dated 
July  11  and  12,  1793,  in  Consideration  of  £750,  they  conveyed  their 
Estate  and  Interests  in  said  Testator's  real  Estates  to  James  Gregory  for 
Life,  and  after  his  Decease  to  the  Defendants  in  Fee  who  were  James 
Gregory's  Children.  James  Gregory  dying  on  December  10,  1793,  the 
Defendants  took  Possession  of  the  said  Estates. 

The  Bill  filed  by  two  of  John  Gregory's  Children  and  the  Representa- 
tive of  the  third,  charged  that  the  Consideration  for  the  said  Conveyance 
was  grossly  inadequate,  that  the  Plaintiffs  were  ignorant  at  the  Time 
of  the  Value  of  their  Interests,  that  James  Gregory  was  at  the  Period  in 
Question  dangerously  ill  and  died  soon  after,  that  the  Plaintiffs  were  in 
indigent  Circumstances,  and  that  Advantage  was  taken  of  them. 

The  Prayer  of  the  Bill  was  that  the  said  Conveyance  might  be  declared 
void  and  set  aside. 

It  was  proved  on  the  Part  of  the  Plaintiffs  by  Hanlcin  a  Surveyor  that 
the  whole  of  the  said  Estates  were  in  1793  worth  £4800,  and  are  now 
worth  £0210.  Another  Witness  confirmed  the  said  Valuation;  James 
Grr(ion/  was  also  proved  at  the  Date  of  the  said  Transaction  to  have  been 
in  ill  I  leal  til,  having  swoln  Legs  and  a  Complaint  in  his  Chest,  and  that 
he  iicvr'f  recovered.  Several  Witnesses  deposed  to  the  Circumstances  of 
John  Gregory's  Sons  in  July  1793,  as  being  indigent,  one  being  a  working 


CHAP.  IV.]  GREG  OK  Y  v.  GREGORY  391 

Wateh-fiuishor,  earning  Ten  and  Sixpence  to  Twelve  and  Sixpence  per 
Week,  and  another  a  Barber  and  Ilair-dresser  in  a  State  of  Poverty  with 
three  Children,  and  who  had  since  gone  to  Sea ;  and  that  the  Husband  of 
the  other  Plaintiff  who  was  the  third  Son,  and  is  since  deceased,  was  also 
in  1793  in  the  same  Trade  of  a  Barber  and  Ilair-dresser,  and  his  Wife 
obliged  to  take  in  Washing. 

The  Mastkr  of  the  Rolls.  There  are  two  Questions  in  this  Case, 
1st.  Wliether  the  Plaintiffs  had  originally  a  Ground  for  setting  aside 
this  Conveyance ;  and,  2dly.  Whether  the  Lapse  of  Time  which  has  taken 
Place  is  not  a  sufficient  Bar.  Now  I  think  that  if  this  Bill  had  been  re- 
cently filed,  the  Plaintiffs  would  have  had  a  Right  to  have  had  the  Sale 
set  aside.  James  Gregory  the  Purchaser  was  the  acting  Trustee  from  the 
Y'ear  1778  to  the  Year  1793,  and  must  therefore  have  acquired  a  complete 
Knowledge  of  the  Situation  and  Value  of  the  Estates.  It  is  true  the 
Bargain  is  made  for  the  Benefit  of  himself  and  his  Children.  But  tl.c 
whole  Transaction  was  managed  by  him  only.  He  chooses  that  the  Form 
of  Transfer  shall  be  to  himself  and  his  Children.  In  Principle  it  must  be 
the  same,  whether  the  Estates  were  purchased  by  him  for  himself  and  his 
Children,  or  for  himself  alone;  and  the  Danger  must  be  as  great  to  permit 
a  Trustee  to  purchase  in  the  Name  of  himself  and  his  Children,  as  in  his 
own  Name.  It  is  clear  that  he  was  not  discharged,  at  the  Time  of  his 
Purchase  from  his  Situation  of  Trustee.  As  to  Inadequacy  of  Price,  one 
listens  with  great  Reluctance  to  Evidence  upon  that  Subject  given, 
after  a  great  Distance  of  Time  from  the  Date  of  the  Transaction.  It  is 
difficult  for  Surveyors  afterwards  to  say  what  was  then  the  Value  of  an 
Estate.  It  is  however  pretty  clearly  made  out  that  there  was  Inadequacy 
of  Price  in  this  Case.  If  therefore  the  Purchase  had  been  recent,  I  am  of 
Opinion  that  it  ought  to  have  been  set  aside.  Then  as  to  the  Length  of 
Time  which  has  elapsed,  I  do  not  see  any  Evidence  of  Fraud  or  Circum- 
vention in  this  Case.  Can  it  then  be  said  that  there  is  no  Distance  of 
Time  at  which  Circumstances  originally  entitling  a  Party  to  Relief  may 
be  considered  as  waved  or  abandoned  ?  Certainly  there  may.  It  is  only  a 
Rule  of  Equity,  that  a  Trustee  shall  not  purchase.  In  all  the  Cases  in 
which  Length  of  Time  has  not  been  allowed  to  operate  against  the  Title 
to  Relief,  it  has  been  shewn  that  there  has  been  a  Continuance  of  the 
Circumstances  under  which  the  Transaction  first  took  Place,  as  of  the 
Distress  of  the  Parties,  or  of  the  improper  Influence  used,  or  of  some 
other  Circumstance.  Here  the  Parties  were  independent  of  the  Pur- 
chaser, or  of  his  Bounty.  They  had  also  the  Opportunity  of  objecting 
early  to  the  Sale.  The  only  Circumstance  alleged  in  Answer  to  this  is 
their  Poverty,  which  is  proved  to  have  been  the  Fact  at  the  Time  of  the 
Purchase.  But  the  Evidence  as  to  that  stops  at  the  year  1793,  and  does 
not  in  the  least  shew  any  Continuance  of  Distress.  Can  it  then  be  said 
that  eighteen  Years  which  have  since  elapsed  can  go  for  Nothing?  In 
Bonny  v.  Ridgard,  a  MS.  Case  cited  by  the  Master  of  the  Rolls,  in  Hill 
V.  Simpson,  7  Ves.  1(37,  a  Case  before  Lord  Kent/on,  he  dismissed  the  Bill 


392  UNITED  STATES  v.  KIEKPATKICK  [part  i. 

merely  upon  the  Lapse  of  Time,  though  he  thought  that  it  was  a  Trans- 
action in  which  if  recent  the  Court  would  have  granted  Relief.  There 
would  be  no  Security  for  Men's  Rights  if  it  were  otherwise.  Upon  the 
Ground  of  Length  of  Time  therefore,  the  Bill  in  this  Case  must  be  dis- 
missed; but  it  being  upon  that  Ground  only,  it  must  be  dismissed  without 
Costs.^ 


UNITED  STATES  v.  KIRKPATRICK. 

In  the  Supreme  Court  of  the  United  States^  1824, 
[9  Whealon  720.] 

In  1813,  one  S.  M.  Reed  was  appointed  a  collector  of  direct  taxes  and 
internal  revenue.  The  defendants  were  sureties  in  his  official  bond,  con- 
ditioned for  the  true  and  faithful  performance  of  the  duties  of  the  office. 
One  of  these  diities  was  the  filing  of  quarterly  reports  with  the  Comp- 
troller of  the  Treasury,  and  if  such  reports  were  not  filed,  the  latter 
official  was  bound  by  law  immediately  to  issue  warrants  of  distress 
against  the  negligent  officer.  From  1814  to  1818,  Reed  did  not  properly 
report  and  the  distress  warrants  Avere  not  issued  against  him.  His 
sureties  being  now  sued  on  the  bond,  they  set  up  the  laches  of  the  govern- 
ment." 

Mr.  Justice  Story'  delivered  the  opinion  of  the  court.* 
Then,  as  to  the  point  of  laches,  we  are  of  opinion,  that  the  charge  of 
the  court  below,  which  supposes  that  laches  will  discharge  the  bond, 
cannot  be  maintained  as  law.  The  general  principle  is,  that  laches  is  not 
imputable  to  the  government;  and  this  maxim  is  founded,  not  in  the 
notion  of  extraordinary  prerogative,  but  upon  a  great  public  policy.  The 
government  can  transact  its  business  only  through  its  agents;  and  its 
fiscal  operations  are  so  various,  and  its  agencies  so  numerous  and  scat- 

^  "Then  as  to  trusts  being  an  cxce])tion  to  the  statute  of  limitations:  The 
rule  liolds  only  as  between  trustees  and  cestui  que  trusts.  It  is  true  that  a 
cestui  que  cannot  set  it  up  against  his  cestui  que  trust:  but  this  is  merely  the 
case  of  a  trustee  by  implication,  and  as  such  affected  by  an  equity;  but  that 
equity  must  be  pursued  within  some  reasonable  time.  Both  courts  of  law  and 
equity  preserve  an  analogy  to  the  statute  of  limitations."  Per  Lord  Com- 
missioner AsnuRST  in  Townshend  v.  Townshend,  1783,  1  Bro.  C.  C.  550,  554. 

^  A  substituted  statement  of  facts. 

'"The  writings  of  Story  arc  cited  as  authority  in  Westminster  Hall,  and 
Lord  Campiikm.,  in  iilluding  to  them  in  a  debate  in  the  House  of  T^ords,  s])oke  of 
their  author  as  'greater  than  any  law  writer  of  which  England  could  boast  since 
the  (lays  of  Blackstone.' " — Speech  on  motion  of  thanks  to  Lord  Asiiburton, 
7th    Aj.r.   1847. 

M)iily  80  much  of  tlic  opinion  as  relates  to  the  laches  of  the  government  is 
given. 


CHAP.  iv.J  UNITED  STATES  v.  KIEKPATKICK  393 

tered,  that  the  utmost  vigilance  would  not  save  the  public  from  the  most 
serious  losses,  if  the  doctrine  of  laches  can  be  applied  to  its  transactions. 
It  would,  in  effect,  work  a  repeal  of  all  its  securities.  On  the  other  hand, 
the  mischiefs  to  the  agents  and  their  sureties  would  be  scarcely  less 
tolerable.  For  if,  where  the  laws,  as  in  the  present  instance,  require 
quarterly  accounts  and  settlements,  a  mere  omission  to  account  is  to  be 
deemed  a  breach  of  the  bond,  for  which  a  suit  must  be  immediately 
brought,  upon  the  peril  of  loss  from  imputed  ladies;  the  collector  and 
their  sureties  would  be  oppressed  with  the  most  expensive  and  vexatious 
litigation;  and  their  whole  real  estate,  which  by  law  is  subjected  to  a 
lien,  upon  the  commencement  of  a  suit,  would  be  perpetually  embarrassed 
in  its  transfers.  This  consideration  of  public  or  private  inconvenience, 
is  not  to  overrule  the  settled  principles  of  law,  but  it  is  certainly  entitled 
to  great  weight,  where  a  new  doctrine  is  to  be  promulgated.  It  is  ad- 
mitted, that  mere  laches,  unaccompanied  with  fraud,  forms  no  discharge 
of  a  contract  of  this  nature,  between  private  individuals.  Such  is  the 
clear  result  of  the  authorities.  Why,  then,  should  a  more  rigid  principle 
be  applied  to  the  government  ?  a  principle  which  is  at  war  with  the 
general  indulgence  allowed  to  its  rights,  which  are  ordinarily  protected 
from  the  bars  arising  from  length  of  time  and  negligence? 

It  is  said,  that  the  laws  require,  that  settlements  should  be  made  at 
short  and  stated  periods ;  and  that  the  sureties  have  a  right  to  look  to  this 
as  their  security.  But  these  provisions  of  the  law  are  created  by  the  gov- 
ernment for  its  own  security  and  protection,  and  to  regulate  the  conduct 
of  its  own  oificers.  They  are  merely  directory  to  such  officers,  and  consti- 
tute no  part  of  the  contract  with  the  surety.  The  surety  may  place  con- 
fidence in  the  agents  of  the  government,  and  rely  on  their  fidelity  in 
office ;  but  he  has  of  this  the  same  means  of  judgment  as  the  government 
itself;  and  the  latter  does  not  undertake  to  guaranty  such  fidelity.  No 
case  has  been  cited  at  the  bar,  in  support  of  the  doctrine,  except  that  of 
People  V.  Jansen,  7  Johns.  332.  In  respect  to  that  case,  it  may  be 
observed,  that  it  is  distinguishable  from  the  present  in  some  of  its  lead- 
ing circumstances.  But  if  it  were  not,  we  are  not  prepared  to  yield  to 
its  authority.  It  is  encountered  by  other  authorities,  which  have  been 
cited  at  the  bar ;  and  the  total  silence  in  the  English  books,  in  a  case  of 
so  frequent  occurrence,  affords  strong  reason  to  believe,  that  it  never  has 
been  supposed,  that  laches  would  be  fatal  in  the  case  of  the  government, 
where  it  would  not  affect  private  persons.  Without  going  more  at  large 
into  this  question,  we  are  of  opinion,  that  the  mere  laches  of  the  public 
officers  constitutes  no  ground  of  discharge,  in  the  present  case.^ 

'"These  two  cases  [the  principal  case  and  U.  8.  v.  Vatizandt  (182fi)  11 
Wheat.  184]  seem  to  fix  the  principle,  that  the  laches  of  the  officers  of  the 
government,  however  gross,  do  not  of  themselves  discharge  the  sureties  in 
an  official  bond,  from  the  obligation  it  creates;  as  firmly  as  the  decisions  of 
this  court  can  fix  it."  Per  Chief  Justice  Marshall  in  Dox  v.  Postmaster-Gen- 
eral, 1828,  1  Peters  318,  326. 


394-  ALLFREY  v.  ALLFREY  [part  i. 

ALLFREY  v.  ALLFREY. 

In  Chancery,  before  Lord  Gotten  ham,  1849. 

[1  Macnaughten  and  Gordon  87.] 

The  Lord  Chancellor  [Cottenham]  :'  .  .  .  Now  in  the  present 
case  there  is  no  question  about  the  fraud.  It  is  as  clear  a  case  of  fraud 
almost  as  can  be  stated;  and  without  going  through  any  great  number  of 
the  instances  of  fraud,  the  one  with  regard  to  the  stock  is  perfectly  con- 
clusive. In  the  first  place,  what  is  it  that  constitutes  the  approval  of  the 
dealing  with  the  stock?  It  is  the  signing  of  the  memorandum,  in  the 
handwriting  it  is  true  of  the  Plaintiff,  but  it  is  quite  obvious  that  it  must 
have  been  done  under  the  dictation  of  the  party  taking  the  benefit  of  that 
memorandum.  The  Plaintiff  signs  a  memorandum,  which  states  that 
he  had  had  a  satisfactory  investigation  of  the  account,  and  of  the  admin- 
istration account  of  the  effects  of  his  parent,  both  parties  claiming 
under  the  parent ;  but,  the  uncle  having  obtained  administration,  it  must 
never  be  forgotten,  under  a  false  oath,  under  a  most  distinct,  direct,  and 
most  inexcusable  perjury,  because  there  could  be  no  misapprehension. 
The  intestate  having  left  a  wife  and  children,  his  brother  goes  to  the 
Ecclesiastical  Court,  and  swears  that  he  is  the  only  next  of  kin,  or  the 
nearest  next  of  kin,  which  entirely  excludes  all  the  family,  his  nephews 
and  nieces,  of  whose  existence  of  course  he  must  have  known;  and  he, 
deliberately  swearing  that  there  were  no  such  persons  in  existence, 
obtains  administration  of  the  father's  estate.  A  more  distinct  and 
palpable  perjury  cannot  be  stated;  and  that  is  the  commencement  of  the 
transactions  which  have  led  to  this  litigation.  Now,  what  the  Defendants 
set  up  as  a  bar  to  the  Plaintiff's  relief  in  asking  for  an  account  of  his 
father's  estate,  is,  that  he,  the  youngest  son,  not  long  after  he  became  of 
age — about  two  years  after  he  became  of  age — signed  a  memorandum, 
stating  that  he  had  had  a  satisfactory  investigation  of  the  account,  and  of 
the  administration  account  of  the  effects  of  his  parent.  Now,  it  is  that 
very  account  which  contains  the  fraud.  Then,  according  to  the  facts  as 
they  stand,  what  is  it  that  constitutes  a  settlement,  and  where  is  the  bar 
to  the  Plaintiff,  to  prevent  him  from  having  the  relief  which  he  prays? 
Is  the  statement  true?  Is  that  a  satisfactory  account?  Could  he  have 
had  a  satisfactory  investigation  of  that  account,  or  could  he  have  had 
a  satisfactory  investigation  of  the  account  of  the  administration  of  the 
effects  of  his  parent?  Why,  this  one  fact — and  one  fact  is  quite  sufficient 
for  the  present  puri)oso — ai)i)ears,  in  regard  to  that  account,  coupled  now 
Avitli  th<'  admitted  fact,  wliicli  is  not  to  be  found  in  that  account,  that  the 

'  There  have  b(?en  oniitlcd  the  statciiient  of  facts  (sufficient  appearing  in  the 
oi)inion;  and  a  part  of  the  opinion  which  discusses  tlie  difference  between 
a  decree  for  an  open  account  generally  (whicli  tlie  court  here  allows)  and 
a  decree  to  surcharge  and  falsify. 


CHAP.  IV.]  ALLFREY  v.  ALLFREY  395 

father  left  a  sum  of  9100Z.,  3?.  per  cent,  stock.  It  is  now  not  In  dispute :  it 
is  either  admitted,  or  so  proved  that  no  contest  is  raised  at  the  bar  on  the 
subject,  that,  in  the  year  1802,  his  brother,  having  so  obtained  adminis- 
tration, sold  out  4000L  of  that  stock,  and  had  the  rest  transferred  into  his 
own  name.  Of  that  transaction  not  a  vestige  is  to  be  found  in  the  ac- 
count of  which  this  young  man  states  that  he  had  had  a  satisfactory 
investigation;  but  entries  are  made  in  it,  in  the  year  1808,  six  years  after 
this  transaction,  as  if  the  stock  had  been  then  sold,  and  other  stock  pur- 
chased. Now  the  plaintiff  knew  nothing,  and  still  knows  nothing  of  these 
entries,  except  so  far  as  they  appear  in  the  account.  He  has  been  de- 
sirous of  ascertaining  what  the  real  transaction  was,  and  has  applied  to 
the  bank  for  that  purpose.  The  bank  returns  the  obvious  answer,  that, 
it  being  the  private  account  of  the  uncle,  they  are  not  in  the  habit  of 
informing  others  of  the  state  of  such  an  account,  without  the  leave  of  the 
party  whose  account  it  is,  and  that  leave  they  have  not  been  able  to  ob- 
tain. We  therefore  have  these  facts;  that  there  was  a  sale  by  the  uncle 
of  9100Z.  stock,  or  a  transfer  to  himself,  which  is  the  same  thing,  of  that 
portion  of  the  intestate's  estate  in  the  year  1802 ;  that  no  entry  was  made 
in  the  account  of  that  transaction  at  the  time  when  it  took  place.  The 
account,  therefore,  is  false  in  that  particular.  There  is  an  omission,  a 
wilful  and  culpable  omission,  at  that  time ;  and  in  the  year  1808,  there  is 
an  entry  inconsistent  with  the  facts  as  they  really  occurred,  because  it 
represents  the  stock  so  sold  or  transferred  in  1802  as  remaining  in  1808. 
So  far  we  know  it  to  be  false,  because  it  is  necessarily  false  from  the  fact 
which  is  proved  as  to  the  transaction  in  1802.  Wliether  any  one  stock 
was  bought,  when  it  was  alleged  to  have  been  bought,  or  what  the  trans- 
actions were  with  regard  to  that  stock,  is  not  before  the  Court,  by  the 
interposition  of  those  who  now  represent  the  uncle's  estate.  We  have 
from  this  account  an  omission  of  what  took  place  in  1802,  and  a  false 
entry  in  1808, — a  misrepresentation,  a  falsification  of  the  real  trans- 
action,— and  therefore  a  fraudulent  statement  of  account,  of  which  the 
"uncle  gets  the  nephew  to  sign  a  memorandum,  that  he  had  had  a  satis- 
factory investigation,  as  well  as  of  the  administration  account  of  the 
parent's  estate.  Now,  then,  this  memorandum,  or  rather  this  account,  so 
proved  to  be  false,  so  proved  to  have  been  obtained  by  misrepresentation 
and  fraud,  is  of  necessity  set  aside;  and  it  is  set  aside  on  the  well  estab- 
lished fact  of  a  fraud  having  been  practiced  by  this  personal  representa- 
tive, also  standing  in  the  place  of  a  parent,  because  he  had  placed  himself 
in  the  position  of  one  standing  in  loco  parentis  with  regard  to  this 
family.  He  had  acted  as  their  uncle,  and  in  many  respects  had  acted 
kindly,  but  so  far  disqualified  himself  in  settling  the  account,  that,  as 
between  himself  and  them,  he  had  assumed  the  character  of  a  person 
acting  in  loco  parentis.  We  have,  therefore,  a  party  acting  in  loco 
parentis  exhibiting  a  falsified  account,  and  getting  his  nephew  to  sign 
that  false  account,  representing  that  he  had  had  a  satisfactory  investiga- 
tion of  it.     Why,  on  the  face  of  the  account,  he  might  have  had  a 


396  ALLFEEY  v.  ALLFREY  [part  i. 

satisfactory  investigation  of  it,  because  the  account  itself  necessarily  did 
not  contain  a  statement,  and  least  of  all,  proof  of  errors;  therefore  he 
may  have  investigated  the  account,  but  nobody  could  have  discovered  the 
fraud,  or  the  omission,  from  the  mere  investigation  of  that  account.  The 
young  man,  however,  had  been  deceived;  the  whole  transaction  had  been 
mystified  and  misrepresented;  and  the  party,  who  was  entitled  to  have, 
as  he  states  he  had  had,  a  satisfactory  investigation  of  the  administration 
account,  as  well  as  the  account  he  signed,  expressed  his  approval  neces- 
sarily in  ignorance  of  the  fraud,  which  had  been  practiced  upon  him. 
That  transaction,  therefore,  is  most  properly,  by  the  decree  of  the  Master 
of  the  Rolls,  set  aside.  Now  what  possible  security  can  the  Court  have, 
or  can  the  Plaintiff  have,  that,  in  pursuing  this  enquiry,  and  endeavour- 
ing to  shew  in  what  other  respects  he  may  have  been  in  a  similar  manner 
defrauded,  he  (the  Plaintiff)  has  the  materials  to  enable  him  to  bring  be- 
fore the  Master  any  other  case  of  fraud?  It  may  exist;  it  may  be  covered 
by  some  false  entry;  and,  if  he  could  find  it  out,  and  have  the  means  of 
proving  it,  he  might  be  relieved  under  a  decree  to  surcharge  and  falsify. 
But  is  it  not  rather  the  duty  of  those  who  rely  upon  the  ac- 
count, who  represent  the  party  who  made  the  account,  who  stand 
in  the  place  of  the  author  of  the  fraud,  to  substantiate  and  prove 
the  actual  state  of  the  account,  than  to  throw  that  burden  on  the  party 
complaining,  and  who  may  with  justice  complain,  of  his  having  been  de- 
ceived and  defrauded  in  the  ostensible  settlement  that  took  place.  No 
doubt  it  may  produce  hardship;  it  is  impossible  to  deny  that,  after  the 
great  length  of  time,  which  I  say  nothing  upon,  because,  when  fraud  is 
so  distinctly  established,  time  becomes  perfectly  immaterial.  The  Plain- 
tiff, not  having  the  means  of  discovering  the  fraud,  did  not  in  fact  dis- 
cover it  until  within  a  comparatively  recent  period. 

Under  these  circumstances,  difficulties  may,  beyond  all  doubt,  arise  in 
passiug  the  account.  The  Master  of  the  Rolls  has,  however,  adopted  a 
plan,  which  has  also  been  pursued  in  a  great  many  recent  cases,  and 
which,  in  a  degree,  applies  a  remedy  to  the  jiossible  evil,  arising  from 
a  loss  of  documents,  or  of  evidence,  from  lapse  of  time.  He  has  given  the 
Master  directions,  that,  if  he  finds  a  difficulty  in  taking  the  account, 
owing  to  the  length  of  time  that  has  elapsed,  or  to  the  loss  of  documents, 
he  is  to  state  specially  the  difficulty,  which  he  finds,  on  circumstances  that 
appear  before  him  on  that  subject.  The  Court,  then,  according  to  the 
facts  that  appear  on  the  Master's  report,  may  be  in  a  situation  to  apply 
such  remedy,  and  give  such  further  directions,  as  the  circumstances  of 
the  case  may  require,  which,  in  a  great  degree,  guards  against  the  pos- 
sibility of  injustice  being  done  even  to  an  offending  party;  and  I  think 
it  affords  all  the  protection,  which  the  party  so  offending  is  entitled  to, 
or  can  in  justice  be  allowed,  in  a  decree  between  himself  and  the  party 
so  defrauded.  I  therefore  approve  of  the  decision  of  the  Master  of  the 
Rolls  in  every  part,  and  dismiss  this  appeal  with  costs.' 

'"The  next  question  is  in  effect,  whether  delay  will  purge  a  fraud?    Never 


CHAP.  IV.]      PRINCIPLES  FOUNDED  ON  IN  THIS  WORK      397 

while  I  sit  here.  Every  delay  arising  from  it  adds  to  the  injustice,  and  multi- 
plies the  oppi-ession."  Per  Lord  Cliancellor  Noutiiington  in  Alden  v.  Gregory, 
1764,  2  Eden  280,  285. 

"No  length  of  time  will  bar  a  fraud."  Per  Lord  Chancellor  Talbot  in 
Cotterell  t\  Purchase,  1734,  Forrester  61,  03. 

The  maxims  treated  by  the  cases  printed  are  not  all  that  have  been  recog- 
nized, but  it  is  believed  they  are  all  that  are  fundamental.  Among  those  not 
treated,  the  following  are  noted  by  Francis  in  his  Maxims  of  Equity,  "It 
is  equity  that  should  have  satisfaction  which  sustained  the  loss."  "It  is 
equity  that  should  make  satisfaction,  which  received  the  benefit."  Neither 
of  these  is  found  in  recent  works,  and  the  principles  involved  in  them  seem 
easy,  if  not  indeed  necessary,  deductions  from  those  considered.  His  maxim, 
"Equity  will  not  suffer  a  double  satisfaction  to  be  taken,"  is  covered  by  the 
cases  in  the  text  under,  "Equity  imputes  an  intent."  Three  others,  "Equity 
relieves  against  accident."  "Equity  prevents  mischiefs,"  and  "Equity  prevents 
multiplicity  of  suits,"  express  principles  that  are  now  recognized  rather  as 
distinct,  well  defined  occasions  for  the  assumption  of  jurisdiction  by  the 
courts  of  equity  than  as  principles  controlling  the  exercise  of  a  jurisdiction 
already  acquired.  They  are  treated  from  tliis  standpoint  in  the  body  of  the 
work.  His  one  other  maxim  not  illustrated  in  the  text  is  "Equity  suffers  not 
advantage  to  be  taken  of  a  penalty  or  forfeiture  where  compensation  can 
be  made."  This  likewise  is  treated  later,  as  belonging  rather  to  equitable  rights. 
Bispham,  in  his  Principles  of  Equity,  gives  still  another  maxim,  "Equity  acts 
specifically."  But  this  also  seems  rather  a  ground  for  taking  jurisdiction  than 
a  general  principle  controlling  its  exercise.  The  principle  has  already  re- 
ceived treatment  under  the  section  "Grounds  of  Equity  Jurisdiction,"  supra. 

In  addition  to  tlie  collection  of  maxims  in  the  standard  works  on  equity, 
the  student  will  find  of  interest  and  value  Hening's  Maxims,  a  book  in  which 
is  reprinted  the  works  of  Noy,   Francis,  and   Branch. 

Lord  Kames,  at  the  end  of  his  two-volume  work  on  the  Principles  of 
Equity,  announced  the  following  general  principles  under  the  title 
prefixed : 

PRINCIPLES    FOUNDED   ON   IN    THIS    AVORK. 


A  man  who  is  innocent  is  not  liable  to  repair  any  hurt  done  by  him. 

When  there  is  a  right,  some  court  must  be  empowered  to  make  it  effectual. 

For  every  wrong  there  ought  to   be  a   remedy. 

No   interest   of   mine,   not   even  the   preservation  of   life   itself,   avithorizes 
me  to   do  any  mischief  to   an   innocent  person. 

Every  man  may  prosecute  his   own  right  without  regarding  any   indirect 
or  consequential  damage  that  another  may  suffer. 

Justice  will  not  permit  a  man  to  exercise  his  right  where  his  intention  is 
solely  to   hurt  another. 

An  action  at  law  will  not  be  sustained  if  the  plaintiff  cannot  show  that 
it  will  benefit  him. 

It   is   an   immoral   act   to   strip    people   of   their    property   by   throwing   a 
strong  temptation  in  their  way. 
_^    He  that  demands  equity  must  give  equity. 
— 1    Equity  holds  a  deed  to  be  granted  where  it  ought  to  be  granted. 


398        PKINCIPLES  FOUNDED  ON  IN  THIS  WORK        [part  i. 

One  is  permitted  to  take  advantage  of  another's  error  in  damno  evitando, 
not  in  lucro  captando. 

No  man  is  entitled  to  the  aid  of  a  court  of  equity  when  that  aid  becomes 
necessary  by  his  own   fault. 

No  person,  however  innocent,  ought  to  take  advantage  of  a  tortious  act 
by  which  another  is  hurt. 

A  man  ought  not  to  take  advantage  of  an  improvement  or  reparation 
made  upon  a  common  subject  without  refunding  part  of  the  expense,  in 
proportion   to   the   benefit   he   has   received. 

A  thought  retained  within  the  mind  cannot  have  the  effect  to  qualify 
an  obligation  more  than  to  create  it. 

To  bind  a  man  by  words  beyond  consent  is  repugnant  to  justice. 

He  who  wills  the  end  is  understood  to  will  the  means  proper  for  accomplish- 
ing the  end. 

A  person  honoured  in  a  deed  can  take  no  benefit  by  it  if  he  counteract 
the  declared  will   of  the  grantor. 

A  man  who  has  committed  no  fault  cannot  be  deprived  of  his  property. 

No  person  is  bound  to  fulfill  an  obligation  that  answers  not  the  end  pur- 
posed by  it. 

Cujus  commodum  ejus  debet  esse  incommodum. 

Every  crime  against  the  law  of  nature  may  be  punished  at  the  discretion 
of  the  judge  when  the  legislature  has  not  appointed  a  particular  punishment. 

A  case  out  of  the  mischief  is  out  of  the  meaning  of  the  law,  though  it  be 
within   the   letter. 

No  man  is  permitted  to  take  advantage  of  a  defect  in  evidence  when  that 
defect  is  occasioned  by  his  fraud. 

Portior  debet  esse  conditio  ejus  qui  certat  de  damno  evitando,  quam  ejus 
qui  certat  de  lucro  captando. 

It  is  unjust  to  demand  from  the  debtor  privately,  or  even  by  legal  execu- 
tion, any  subject  that  he  is  bound  to  convey  to  another. 

No  man  is  suffered  to  take  benefit  by  his  own  fraud  or  wrong. 

No  man  is  suffered  to  make  a  defence  contrary  to  conscience  more  than 
to   make   a   claim. 

Frustra  petis  quod  mox  es  reflituturus. 

The  motive  of  preventing  loss  will  not  justify  an  unjust  act  or  the  being 
accessory    to    it. 

These  principles  are  printed  at  end  of  volume  one  of  Fonblanque's  Equity. 


CHAP,  v.]  WILLIAM  SYSEL'S  CASE  399 


CHAPTER  V. 


EQUITABLE  RIGHTS. 


Section  1.    Accident. 


WILLIAM  SYSEL'S  CASE. 

In  Chancery,  before  Lord  Chancellor  Edmund  de  Stafford, 

1398-1403. 

\Select  Cases  in  Chancery,  10  Selden  Society,  No.  39.]  ' 

To  the  most  honourable  and  most  reverend  Lord  and  Father  in  God, 
the  Bishop  of  Exeter  and  Chancellor  of  England, 

Beseecheth  William  Sysel,  one  of  the  lieges  of  our  Lord  the  King,  that 
whereas  lately  John  Burdeyn,  Prior  of  Leighs  in  the  county  of  Essex, 
by  his  writing  indented,  and  with  the  assent  of  his  convent,  granted 
to  the  said  suppliant  a  corrody,°  to  be  taken  yearly  in  the  said  Priory, 
as  in  certain  indentures  between  the  said  Prior  and  the  said  suppliant 
was  more  fully  contained;  of  which  corrody  the  said  suppliant  was 
peaceably  possessed,  by  virtue  of  the  said  grant,  until  the  Thursday  after 
the  Purification  of  our  Lady  in  the  21st  year  of  our  Lord  the  King 
[1398],  when  certain  persons,  with  the  assent  of  the  said  Prior,  entered 
the  house  of  the  said  William  within  the  said  Priory  against  his  con- 
sent and  will,  and  broke  the  said  house,  and,  with  force  and  arms,  took 
and  carried  off  the  deeds,  evidences,  and  other  muniments  touching  the 
said  corrody  and  other  debts  between  the  suppliant  and  the  said  Prior, 
by   [the  direction  of?]   the  said    Prior;  whereby  the  said   suppliant   is 

^  In  his  arrangement  of  cases  under  the  heading  "Principles  and  Growth  of 
Equity,"  the  editor  of  "Select  Pleas  in  Chancery,"  Mr.  William  Paley  Baildon, 
has  grouped  this  case  under  "Accident."  His  note  to  the  case  itself  reads: 
"No  equitable  doctrine  appears  in  this  case,  unless  discovery  is  implied  in  the 
prayer.  Specific  performance  is  not  asked  for,  although  it  might  liave  been 
expected." 

^A  right  to  certain  allowances  of  food,  and  sometimes  lodging  and  raiment; 
they  were  common  in  most  English  monasteries,  and  were  frequently  com- 
muted for  a  money  payment. 


400  KOPPEE  V.  DYEE  [part  i. 

ruined,  and  [hath]  lost  the  substance  of  his  living:  May  it  please  your 
most  gracious  Lordship  to  grant  a  writ  of  our  most  redoubted  Lord  the 
King  directed  to  the  said  Prior  [commanding  him]  to  be  before  you  in 
the  Chancery  on  the  quindene  of  Trinity  next  to  come,  to  answer  to  this 
matter,  and  according  to  what  is  found  by  examination  or  by  averment, 
to  do  what  right,  law  and  good  faith  demand;  For  God  and  in  way  of 
Charity/ 


KoppER  V.  Dyer  (1887),  59,  Vt.  477,  482.— Eowell,  J.  Kopper  seeks 
relief  on  the  ground  of  accident.  That  chancery  may  grant  relief  on  that 
ground  in  cases  of  this  kind  cannot  be  doubted;  and  the  first  question 
that  arises  is,  Has  the  orator  made  a  case  that  calls  for  the  interposition 
of  the  court  in  his  behalf  ? 

The  term  accident,  in  its  legal  signification,  is  difficult  to  define. 
Judge  Story  defines  it  as  embracing  "  not  merely  inevitable  casualty,  or 
the  act  of  Providence,  or  what  is  technically  called  vis  major,  or  irre- 
sistible force;  but  such  unforeseen  events,  misfortunes,  losses,  acts,  or 
omissions  as  are  not  the  result  of  any  negligence  or  misconduct  in  the 
party  "  affected  thereby.  1  Story  Eq.  s.  78.  Mr.  Pomeroy  justly  criti- 
cises this  definition  as  including  what  are  not  accidents  at  all  but 
mistakes,  and  as  omitting  the  very  central  element  of  the  equitable  con- 
ception, and  defines  it  thus :  "  Accident  is  an  unforeseen  and  unexpected 
event,  occurring  external  to  the  party  afi^ected  by  it,  and  of  which  his 
own  agency  is  not  the  proximate  cause,  whereby,  contrary  to  his  own 
intention  and  wish,  he  loses  some  legal  right  or  becomes  subjected  to 
some  legal  liability,  and  another  person  acquires  a  corresponding  legal 
right,  which  it  would  be  a  violation  of  good  conscience  for  the  latter  per- 

^  "Touching  the  affirmative  part,  what  matters  are  relievable  in  the  chan- 
cery, I  have  heard  they  must  be  one  of  these  kinds,  viz.  matters  of  fraud, 
trust,  extremity,  or  casualty;  or  else  not  lightly  to  be  dealt  in  here.  For 
almost  all  others  besides  these  do  arise  from  the  remiss,  careless,  and  neg- 
ligent dealings  of  men,  who  having  precipitated  themselves  into  some  great 
inconveniences,  come  with  open  mouths  into  the  chancery  seeking  relief; 
wherein  how  far  they  shall  be  thought  tit  to  be  holpen,  I  will  not  presume  to 
determine." — Hargrave  Law  Tracts,  431. 

"Three  things  are  to  be  judged  in  court  of  conscience:  covin,  accident, 
and  breach  of  confidence. 

"All  covins,  frauds,  and  deceits,  for  the  which  there  is  no  remedy  by  the 
ordinary  courts  of  law. 

"Accident,  as  wlion  a  servant  of  an  obligor,  mortgagor,  &c.  is  sent  to  pay 
the  sum  on  the  same  day,  and  he  is  robbed  &c.,  remedy  is  to  be  liad  in  tliis 
court  against  the  forfeiture,  and  so  in  the  lii<e. 

"The  tliird  is  a  breach  of  trust  and  confidence,  whereof  you  have  plentiful 
authorities  in  our  books." — 4  Co.  Inst.  84. 


CHAP,  v.]  KOPPER  V.  DYER  401 

son,  under  the  circumstances,  to  retain."  2  Pomeroy  Eq.  s.  823,  n.  1. 
And  the  chief  point  of  the  thing  is,  that  because  of  the  unforeseen  and 
unexpected  character  of  the  occurrence  by  which  the  legal  relation  of 
the  parties  has  been  unintentionally  changed,  the  party  injuriously 
affected  thereby  is  in  good  conscience  entitled  to  relief  that  will  restore 
those  relations  to  their  original  character,  and  place  him  in  his  former 
position.  lb.  s.  824.  But,  as  a  general  rule,  relief  will  not  be  granted 
unless  it  can  be  done  with  justice  to  the  other  party;  for  if  he  cannot 
be  put  in  as  good  a  situation  as  he  would  have  been  in  had  the  other 
party  performed,  the  court  would  not  interpose.  Rose  v.  Rose,  Amb.  331.* 
Equity  in  many  instances  relieves  against  forfeitures  occasioned  by 
the  non-payment  of  money  at  a  day  certain;  and  this,  although  there  is 
no  accident,  but  negligence  instead;  on  the  ground  that  the  condition 
and  the  forfeiture  are  regarded  as  merely  security  for  the  payment  of 
the  money.  This  is  the  ground  on  which  tenants  are  relieved  from  for- 
feitures for  the  non-payment  of  rent  as  stipulated,  and  mortgagors  are 
allowed  to  redeem  after  the  law-day  has  passed.  And  although  the  agree- 
ment is  not  wholly  pecuniary  nor  measured  by  pecuniary  compensation, 
still,  if  the  party  bound  by  it  has  been  prevented  by  accident  without 
his  fault  from  an  exact  fulfillment,  so  that  a  forfeiture  is  thereby  in- 
curred, equity  will  interpose  and  relieve  him  from  the  forfeiture,  upon 

'  Story's  definition  of  accident  is  adopted  by  H.  A.  Smith  in  his  Principles 
of   Equity,   232.- 

The  term  is  defined  by  Jeremy,  Equity  Jurisdiction,  358,  as  "an  occurrence 
in  relation  to  a  contract  which  was  not  anticipated  by  the  parties  when  the 
same  was  entered  into,  and  which  gives  an  undue  advantage  to  one  of  them 
over  the  others  in  a  court  of  law."  Story  criticises  this  expression,  saying: 
"Accidents,  in  the  sense  of  a  court  of  equity,  may  arise  in  relation  to  other 
things  besides  contracts,  and  therefore  the  confining  of  the  definition  to 
contracts  is  not  entirely  accurate.  The  definition  is  defective  in  another  re- 
spect; for  it  does  not  exclude  cases  of  unanticipated  occurrences,  resulting 
from  the  negligence  or  misconduct  of  the  party  seeking  relief."  The  same 
author  criticises  the  definition  of  Lord  Chancellor  Cowper  that  "by  accident 
is  meant  when  a  case  is  distinguished  from  others  of  the  like  nature  by 
imusual  circumstances,"  [Earl  of  Bath  v.  Sherwin  (1710)  10  Mod.  1]  which 
is  pronounced  "quite  too  loose  and  inaccurate,  without  some  further  qualifi- 
cations; for  it  is  entirely  consistent  with  the  language,  that  the  unusual  cir- 
cumstances may  have  resulted  from  the  party's  own  gross  negligence,  folly, 
or  rashness." — 1  Equity  Jurisprudence,  87,  n.  1,  and  88.  Pomeroy  states  that 
the  definition  "is  so  imperfect  and  inaccurate  as  to  be  entirely  worthless." 
Equity   Jurisprudence,   §    823,   n.    1. 

Josiah  W.  Smith,  in  his  Manual  of  Equity  Jm-isprudence,  28,  gives  the  fol- 
lowing: "Accident,  as  remediable  in  Equity,  may  be  defined  to  be  an  unfore- 
seen and  injurious  occiu-rence,  not  attributable  to  mistake,  neglect,  or  mis- 
conduct." Mr.  Bispham  says  this  "seems  to  be  both  accurate  and  comprehen- 
sive."— Principles  of  Equity,  §   174. 

Spence  remarks,  "Every  attempt  to  define  accident  in  its  judicial  acceptation, 
€ven  in  modern  tinges,  has  failed." — eTurisdiction  of  Court  of   Chancery,   028. 


402  KOPPER  V.  DYER  [part  i. 

his  making  compensation,  if  necessary,  or  doing'  everything  else  in  his 
power  to  satisfy  the  equitable  rights  of  the  other  party.  2  Porneroy  Eq. 
s.  833. 

In  Cage  v.  Russell,  2  Vent.  352,  it  is  laid  down  as  a  standing  rule  of 
equity  that  a  forfeiture  shall  not  bind  when  the  thing  can  be  done  after- 
wards, or  any  compensation  can  be  made  for  it.  Forfeitures  are  odious, 
and  courts  struggle  against  them;  and  relief  is  granted  for  the  non- 
performance of  divers  collateral  acts  whereby  they  are  incurred;  as,  for 
not  laying  out  a  specific  sum  in  repairs  in  a  given  time — Sanders  v. 
Pope,  12  Ves.  282;  for  cutting  down  timber  when  covenanted  against — 
Northcote  v.  Duke,  Amb.  511;  for  not  renewing  a  lease  in  time — Raw- 
storne  v.  Bentley,  4  Bro.  C.  C.  [MIS]  :  and  the  like.  Relief  is  also 
granted  against  forfeitures  incurred  by  unintentional  breaches  of  the 
condition  of  mortgages  for  support,  on  terms  that  the  party  in  fault  fully 
compensate  and  indemnify  the  other  party  for  all  he  has  lost  by  reason 
of  the  breach.    Henry  v.  Tupper,  29  Vt.  358. 

In  Adams  v.  Haskell,  10  Wis.  123,  the  defendants  were  prevented  by 
accident  from  reaching  the  place  of  a  foreclosure  sale  until  after  it  was. 
completed,  and  the  court  for  that  reason  ordered  a  resale,  but  on  terms. 

In  Pierson  v.  Clayes,  15  Vt.  93,  the  orator,  by  reason  of  pending  nego- 
tiations of  settlement,  without  negligence  on  his  part,  let  the  time  of 
redemption  expire ;  and  he  was  relieved  by  opening  the  decree  and  giving 
further   time    to    redeem. 

The  case  of  Bostwick  v.  Stiles,  35  Conn.  195,  is  confessedly  much  in 
point.  That  was  a  bill  to  open  a  decree  of  foreclosure  and  obtain  further 
time.  The  mortgage  debt  was  about  $4,000,  and  the  value  of  the  premises 
twice  that  sum.  The  time  limited  for  payment  was  August  5th.  The 
petitioner  intended  to  redeem,  but  not  having  sufficient  means  of  his  own, 
he  applied  to  his  uncle — a  man  of  property — to  help  him,  and  he  agreed 
to,  and  to  furnish  the  money  on  August  3d,  on  which  the  petitioner 
relied ;  but  for  some  reason  not  explained  he  did  not  furnish  the  money 
as  agreed,  and  the  petitioner  delayed  making  other  arrangements  until 
the  evening  of  August  5th,  when  he  applied  to  Russell  for  assistance. 
Russell  had  no  money,  but  plenty  of  government  bonds,  and  agreed  to 
make  payment  in  them  if  defendant  would  take  them,  and  accordingly 
went  to  defendant's  house  that  evening  after  defendant  had  gone  to  bed^ 
and  told  his  wife  that  he  had  come  prepared  to  redeem  the  mortgage  for 
the  petitioner,  but  dofendant  did  not  get  up,  but  sent  word  by  his  wife 
that  ho  was  sick,  and  Russell  went  away.  On  this  state  of  facts  the  court 
held  that  the  petitioner's  failure  to  pay  on  August  5th  was  occasioned  by 
aecident,  without  fault  or  neglect  on  his  part,  and  that  the  accident  lay 
in  the  fact  of  his  uncle's  failure  to  furnish  the  money  as  agreed,  and  as 
the  petitioner  had  reason  to  believe  he  would.  The  court  says  that  there 
is  a  degree  of  uneertninty  in  regard  to  all  business  expectations,  and  that 
no  more  ought  tf)  he  rc(|uire(]  iti  r(>speft  of  future  obligations  imposed 
by  law  than  that  such  means  shall  he  taken  to  fulfill  them  as  will  render 


CHAP,  v.]  ANONYMOUS  403 

it  reasonably  certain,  as  far  as  human  sagacity  can  foresee,  that  they  will 
be  performed. 

It  is  common  in  England  to  enlarge  the  time  of  redemption  on  applica- 
tion before  the  day  of  payment ;  and  though  the  indulgence  is  not  granted 
of  course,  it  is  said  not  to  require  a  very  strong  case  to  obtain  it.  And 
the  time  may  be  enlarged  more  than  once.  Thus,  in  Jones  v.  Creswicke, 
9  Sim.  304,  after  the  time  had  been  enlarged,  and  after  the  order  absolute 
had  been  made  though  not  drawn  up,  the  time  was  again  enlarged,  on  the 
ground  that  the  man  who  had  agreed  to  lend  the  defendant  the  money  was 
prevented  by  illness  from  going  up  to  London  on  the  day  it  was  due,  and 
his  wife,  whom  he  had  deputed  to  carry  it  up,  was  prevented  from  doing 
so  because  the  London  coach  was  full  the  day  before.  And  see  Edwards 
V.  Cunliffe,  1   Madd.  287. 

And  the  decree  may  be  opened  after  the  order  absolute  has  been  made 
and  enrolled.  Thus,  in  Ford  v.  Wastell,  6  Hare,  229,  notwithstanding 
the  order  absolute  had  been  drawn  up  and  enrolled,  the  decree  was 
opened  because  all  the  plaintiff's  property  was  involved  in  an  administra- 
tion suit  that  she  was  justified  in  believing  would  terminate  in  season  to 
enable  her  to  avail  herself  of  her  property  with  which  to  meet  the  pay- 
ment, but  which  had  not  yet  terminated.  See  also  Thornhill  v.  Manning, 
1  Sim.  N.  s.  451,  in  which  the  promptness  of  the  mortgagor  in  applying 
was  regarded  as  the  great  and  important  feature  in  the  case  to  guide 
the  court  in  deciding  what  it  ought  to  do. 


ANONYMOUS. 

In  the  Court  of  Common  Pleas^  1536-37. 

[Dyer  33a.] 

A  lease  for  years  was  made  of  a  meadow  by  which  the  river  Exe  runs, 
by  deed  indented ;  and  the  lessee  covenanted  to  sustain  and  repair  the 
banks  to  prevent  the  water  from  overflowing,  upon  pain  of  forfeiture 
of  ten  pounds.  And  afterwards,  by  reason  of  a  great,  outrageous,  and 
sudden  flood,  which  happened  lately  by  reason  of  the  subversion  of  the 
weirs  in  Devonshire,  the  banks  were  decayed  and  perished,  &c.  And  by 
the  opinion  of  Fitzherbert  and  Shelley  the  law  is,  that  the  lessee  is 
excused  from  the  penalty;  as  if  it  were  of  an  house  which  is  burnt  by 
lightning,  or  overturned  by  the  wind,  because  it  is  the  act  of  God.  which 
cannot  be  refitted;  but  still  he  is  bound  to  make  and  repair  the  thing 
in  convenient  time,  because  of  his  own  covenant.' 

*  In  Atkinson  v.  Harman,   1553-58,   1   Calends,   cxlii.    (a   case  on  all   fours 


404  UNDEKWOOD  v.  SWAIN  [part  i. 

EOWLES  V.  ROWLES. 

In  Chancery,  1579-80. 

iCary  111.] 

The  plainant'desireth  to  be  relieved  against  an  obligation  of  one  hun- 
dred pounds,  which  had  an  intricate  and  insensible  condition  put  in 
suit,  for  that  the  plainant,  being  desired  by  the  defendant  to  seal  a 
release,  desired  only  time  to  be  advised  thereof,  which  the  defendant 
would  not  yield  unto,  but  hath  put  the  bond  in  suit,  though  no  ways 
damnified;  and  now  the  plainant  is  ready  to  seal  the  release;  therefore 
an  injunction  is  granted. 


UNDERWOOD  v.  SWAIN. 

In  Chancery,  1649. 
[1  Beporis  in  Chancery  161.] 

The  Case  is.  That  Philip  Swain  being  seized  in  Fee  of  the  Lands  in 
question,  by  Will  devised  the  same  to  John  Swain  of  Langston  his 
Kinsman  and  his  Heirs,  in  consideration  that  he  should  pay  all  his 
Debts    and    Legacies,    by   which    Will    the    said    Philip    appointed    his 

with  tlip  priiifipal  case)  the  plaintiff  filed  his  bill  in  Chancery  asking  relief 
from  a  deed  by  the  terms  of  which  he  was  bound,  under  penalty,  to  keep  in 
repair  certain  banks,  thus  confining  the  water  from  the  Thames.  The  bill  set 
forth  that  tlie  banks  were  so  washed  out  by  sudden  and  heavy  rains,  that 
the  keeping  of  them  in  repair  was  impossible.  Both  the  answer  and  the 
replication  are  given,  but  no  endorsement.  The  disposition  made  of  the  case 
is  therefore  uncertain. 

Mr.  Spence  says:  "The  cases  in  which  the  Court  of  Chancery  was  first  called 
upon  to  exercise  this  jurisdiction  [founded  on  accident],  so  far  as  we  can 
collect,  was  in  the  instance  of  penalties  and  forfeitures." — Jurisdiction  of 
Comt    of  Chancery.    028. 

"It  has  sometimes  been  said  by  writers  that  this  entire  jiu'isdiction  over 
jx-nalties  and  forfeitures  is  l)ased  upon  accident.  It  may  be  true  that,  in  the 
earliest  period  of  equity,  the  chancellors  referred  cases  of  relief  against  pen-, 
alties  to  the  general  head  of  accident;  but  to  explain  the  whole  jurisdiction 
as  now  administered  by  treating  it  as  based  on  accident,  is  to  disregard  the 
plain  facts  and  meaning  of  words." — Pomeroy,  Equity  Jurisdiction,  §  833,  n.  1. 

AL'.iin  Mr.  Spence  says:  "In  the  reign  of  Philip  and  Mary,  we  find  bills 
filed  to  he  relieved  from  penalties,  expressly  on  the  ground  of  accident,  as 
where  a  person  was  bouiMJ  to  repair  the  banks  of  a  river  within  a  given  time. 


CHAP,  v.]  UNDERWOOD  v.  SWAIN  406 

Legacies  to  be  paid  within  two  Months  after  the  death  of  Sibil  his 
IFi/e,  who  had  an  Estate  in  the  Premises  for  her  Life,  and  lived  about  12 
years  after  tlie  death  of  the  said  Philip,  and  in  the  mean  time  married 
the  Plaintifl"  Underwood,  who  having  an  Estate  in  right  of  his  said 
W^ife  for  her  l^ife.  purchased  the  Keversion  thereof  after  the  death  of 
the  said  John  Swain  of  Langston  of  John  Swain  the  Son  and  Heir  of 
the  said  Joh)i  Swain  of  Langston,  the  Devisee  of  the  said  Philip  Swain, 
and  afterwards  the  said  Plaintiff  Undertvood  paid  the  Debts  of  the  said 
Philip  and  all  the  Legacies,  except  two  five  pounds  to  two  of  the  Lega- 
tees, and  for  Non-payment  whereof  the  Defendant  John  Swain  entred 
on  the  Premises  as  Heir  at  Law,  the  Condition  being  broken.  But 
before  the  said  Entry  the  Plaintiff  Underwood  sold  the  Premises  to 
Tohy  Payn,  and  the  said  Tohy  Payn  devised  the  Premises  to  the  now 
Plaintiffs  Thomas  and  John  Payn,  and  died,  pending  this  Suit,  which 
the  now  Plaintiff  revived. 

This  Case  was  reduced  to  this  short  Question,  viz.  Whether  a  Court 
of  Equity  can  control  the  Law,  or  give  Relief  against  an  Entry  made  by 
the  Heir  for  the  Breach  of  a  Condition. 

and  had  been  prevented  by  an  extraordinary  flood  [citing  Atkinson  v.  Har- 
mon, supra'l.  Many  instances  of  relief  against  penalties  in  money  bonds, 
on  the  ground  that  payment  had  been  prevented  by  some  unforeseen  event, 
appear  in  the  time  of  Elizabeth."  To  this  he  has  the  following  note:  "As 
where  a  person  was  prevented  from  doing  the  act  by  a  flood,  Reg.  Lib.  13. 
1579,  fo.  138;  by  the  Plague  B.  1582,  fo.  2C9,  and  the  like.  In  one  case  the 
plaintifl",  the  defendant's  tenant,  had  paid  his  rent  to  the  plaintiff's  servant, 
who  had  no  authority  to  receive  it,  so  that  he  had  to  pay  it  over  again ;  being 
a  poor  man  he  had  difiiculty  in  again  procuring  the  money,  and  the  landlord 
refused  to  receive  it  when  tendered,  saying  the  sun  had  gone  down  (which 
was  doubtful,  it  being  a  cloudy  day)  and  he  brought  an  action  of  ejectment 
on  the  ground  of  forfeiture,  'which  kind  of  dealing,'  says  the  order,  'this 
court  doth  utterly  condemn;'  therefore  an  injunction  was  granted,  B.  1575, 
fo.  42.  Similar  order,  B.  1575,  fo.  258. — Jurisdiction  of  Court  of  Chancery, 
629,  and  n.  (e). 

"If  a  man  be  bound  in  a  penalty  to  pay  money  at  a  day,  and  place,  by 
obligation,  and  intending  to  pay  the  same,  is  robbed  bj'  the  way;  or  hath 
intreated  by  word  some  other  respite  at  the  hands  of  the  obligee,  or  cometh 
short  of  the  place  by  any  misfortune ;  and  so  failing  of  the  payment,  doth 
nevertheless  provide  and  tender  the  money  in  short  time  thereafter ;  in  these 
and  many  such  like  cases,  the  Chancery  will  compel  the  obligee  to  take  his 
principal,  with  some  reasonable  consideration  of  his  damages  (quantum  ex- 
pediat) ,  for  if  this  was  not,  men  would  do  that  by  covenant  which  they  do 
now  by  bond. 

"The  like  favor  is  extendable  against  them  that  will  take  advantage  upon 
any  strict  condition,  for  undoing  the  estate  of  another  in  lands,  upon  a  small 
or  trifling  default." — Cary  1. 

For  cases  illustrating  the  jurisdiction  exercised  by  a  court  of  equity  in 
cases  of  lost  bonds,  see  the  cases  of  Atkinson  v.  Leonard,  supra,  p.  138,  and  cases 
following.  . 


406  THE  KING  v.  ARUNDEL  [part  l 

This  Court  upon  View  of  Precedents  in  Cases  of  like  nature  was  clear 
of  Opinion  to  give  Relief  to  the  Plaintiffs  notwithstanding  the  said 
Forfeiture,  and  decreed  the  Plaintiffs  and  their  Heirs  to  enjoy  the 
Premises  against  the  Defendants  and  their  Heirs. 


THE  KING  V.  ARUNDEL. 

In  Chancery,  before  Lord  Chancellor  Ellesmere,  1617. 

[Hohart  109.]' 

In  Chancery  there  was  a  Suit  commenced  by  me,  as  Attorney  General, 
in  the  Behalf  of  the  King's  Majesty,  and  the  Lord  Himsdon  as  the  King's 
farmer  for  the  Manor  of  West  Harsley  and  Asalby  in  the  County  of  York, 
against  the  Countess  Dowager  of  Arundel,  and  the  Lord  William  Howard 
and  his  Lady ;  which  Cause  coming  to  Hearing  after  I  was  Chief  Justice 
of  the  Common  Pleas,  my  Lord  Chancellor  called  to  his  Assistance  in  the 
hearing  of  it,  the  Lord  Chief  Justice  Col:e  and  myself.^  This  Cause  hung 
long,  and  had  many  hearings  and  Briefs  delivered,  and  after  long  Con- 
sideration was  this  Term,  with  uniform  Consent  of  the  Lord  Chancellor, 
us  the  Judges,  and  Master  of  the  Rolls,  decreed  for  the  King:  Wherefore 
the  decree  is,  with  the  Reasons  thereof,  advisedly  and  exactly  penned  and 
entred,  as  of  this  Trinity  Term  14  Jac. 

Of  this  decree  therefore  at  large  I  will  say  nothing  but  this,  that  the 
Reason  of  the  Suit  in  Chancery  was  not  for  Want  of  good  Title  at  Law 
(for  it  laid  and  affirmed  the  King's  Title  to  be  merely  by  Law,  by  the  At- 
tainder of  Francis  Dacres,  whose  Land  the  Bill  laid  the  Land  to  be,  of 
an  Estate  in  Tail)  but  the  Cause  of  Suit  was  made,  that  the  Deeds 
whereby  the  Estate  was  to  come  to  Francis  Dacres  were  not  Extant,  but 
very  vehemently  suspicious  to  have  been  suppressed  and  with-holden  by 
some  under  whom  the  Defendants  claimed,  and  therefore  in  the  End  the 
Decree  ran,  that  the  King  and  his  Heirs,  and  his  said  Farmer,  should 
hold  and  enjoy  the  Land  'till  the  Defendants  should  produce  the  Deeds, 
and  the  Court  thereupon  take  further  Consideration  and  Order.* 

^The  case  is  cited  and  facts  givon  in  Cowper  v.  Cowper  (1784)  2  Peers 
Wms.  720,  748,  by  Sir  Joseph  Jokyll,  ]\I.  R.     See  also  2   Eq.  Cas.  Abr.  287. 

^  It  appears  from  Sir  Joseph  Jekj'll's  account  that  the  Master  of  the  Rolls, 
Sir  Julius  Ca-sar,  also  assisted  at  ihe  detennination  of  this   important  case. 

■■"'Again  it  has  been  said  that  fraud,  accident,  and  trust  are  the  proper 
and  peculiar  objects  of  a  court  of  equity.  .  .  .  Many  accidents  are  also 
supplied  in  a  courl  of  law  ;  as,  loss  of  deeds,  mi.stakes  in  receipts  or  accounts, 
AVTong  payments,  dcatlis  wliich  make  it  impossible  to  perform  a  condition 
literally,  and  a  multitude  of  other  contingencies." — 3  Blackstone's  Commen- 
taries, 431. 


CHAP,  v.]  DALSTON  v.  COATSWORTH  407 


DALSTON  V.  COATSWORTH. 

In  Chancery,  befoue  Sir  Joseph  Jekyi.l,  M.  R.,  1721. 

[1  Peere  Williams  731.] 

The  plaintiff  brought  a  bill  for  relief  ajiainst  the  suppression  of  a  deed, 
by  which  the  plaintiff's  uncle  had  settled  a  term  in  such  a  manner  as  that 
after  his  and  his  wife's  death  (which  wife  was  the  defendant)  without 
issue,  the  same  was  to  come  to  the  plaintiff  for  the  residue  of  the  term. 

The  plaintiff's  uncle  was  dead  without  issue,  and  the  defendant  the 
wife  had  burnt  the  deed. 

The  defendant  by  her  answer  but  faintly  denied  it,  (viz.)  that  she  did 
not  remember  she  ever  burnt  or  destroyed  the  said  deed. 

The  witnesses  swore  the  limitations  of  the  settlement  to  be  in  trust  for 
the  husband  for  life,  remainder  to  the  defendant  his  wife  for  life,  re- 
mainder to  the  heirs  of  their  bodies  [by  one  witness,]  remainder  to  the 
issue  of  their  bodies  [by  another,]  and  for  want  of  issue  by  the  defendant 
and  her  husband,  remainder  to  the  plaintiff. 

Objected  for  the  defendant,  that  the  limitations  of  the  trust  of  the 
term  being  to  the  heirs  of  the  bodies  of  the  defendant  and  her  husband, 
or  to  the  issue  of  the  bodies  of  the  defendant  and  her  husband,  remainder 
over  to  the  plaintiff,  such  a  remainder  over  of  the  trust  of  the  term  was 
void  in  law;  and  therefore  supposing  the  deed  to  have  been  suppressed, 
yet  it  could  not,  were  it  to  be  admitted,  profit  the  plaintiff,  or  make  him 
any  title. 

But  by  the  master  of  the  rolls,  it  is  true,  where  a  term  is  limited  to  a 
man  and  wife  for  their  lives,  remainder  to  the  heirs  of  their  bodies,  and 
for  want  of  such  issue,  remainder  over,  this  remainder  over  being  but  of 
a  term  is  void :  but  on  the  other  side,  a  term  may  be  limited  in  the 
following  manner,  (viz.)  to  trustees  in  trust  for  the  husband  and  wife 
for  their  lives,  and  afterwards  for  their  children,  or  for  their  issue ;  and 
for  want  of  such  children  or  issue  living  at  the  death  of  the  said  husband 
and  wife,  then  to  go  over  to  the  plaintiff,  and  such  limitation  (vide 
Stanley  v.  Leigh,  post,  2  vol.  686)  is  good;  now,  since  a  term  might  be 
limited  in  such  a  manner,  I  will  intend  it  to  have  been  so  limited  in  the 
present  case,  for  every  thing  shall  be  presumed  in  odium  spoliatoris. 

Then  his  honour  considered  in  what  manner  the  decree  should  be 
pronounced,  and  he  cited  the  case  in  Hob.  109.  The  king  and  lord  Huns- 
don  versus  countess  dowager  of  Arundel,  where  the  king  and  his  farmer 
under  him  claimed  title  by  the  attainder  of  Francis  Dacres  who  was  at- 
tainted of  high  treason,  and  was  supposed  to  be  tenant  in  tail  by  virtue 
of  a  deed  not  extant,  but  vehemently  suspected  to  be  suppressed  and 
withholden  by  some  under  whom  the  defendants  claimed,  and  therefore 
it   was   decreed   by   the   then   lord   chancellor,    with   the   assistance    of 


408  DALSTON  v.  COATSWOETH  [part  i. 

the  two  chief  justices  (Coke  and  Ilohart)  that  the  king  and  his  farmer 
under  him  should  hold  the  land  until  the  defendants  produced  the  deed, 
and  the  court  made  farther  order  thereon ;  his  honour  said,  that  Sir  John 
Trevor  his  predecessor  had  ordered  this  decree  to  be  searched  for,  the 
term  being  mentioned  in  the  report,  but  it  could  not  then  be  found ;  how- 
ever, that  he  himself  having  since  ordered  farther  search  to  be  made, 
had  found  the  same,  under  the  name  of  Hobart,  attorney  general  versus 
L '  so  that  now  any  person  might  have  access  to  the  said  decree. 

That  the  next  case  of  this  nature  was,  that  of  Sanson  versus  Eumsey 
town-clerk  of  Bristol  where  the  defendant  Rumsey  had  articled  to  give 
a  portion  to  Sanson  with  his  daughter,  and  the  defendant  had  the  deed 
in  his  custody;  the  plaintiff  suing  for  the  portion,  and  setting  forth  the 
purport  of  the  articles  by  his  bill,  the  defendant  pretended  in  his  answer, 
that  the  articles  did  vary  from  what  the  bill  set  forth,  and  afterwards 
burnt  the  articles;  all  which  being  made  to  appear,  he  was  committed, 
and  continued  under  confinement  till  he  had  admitted  the  articles  to  be 
as  the  bill  had  set  them  forth,  which  commitment  was  only  by  an  inter- 
locutory order,  and  the  cause  never  heard. 

The  next  was  that  of  Hampden  versus  Hampden,  heard  the  8th  of 
December  1708,  where  the  plaintiff  claiming  as  devisee  under  the  defend- 
ant's father's  will;  by  proof  it  appeared  that  there  was  such  a  will, 
though  no  exact  account  was  given  of  the  contents  thereof;  but  inasmuch 
as  the  court  was  satisfied  the  defendant  had  suppressed  the  will,  and  for 
that  (though  no  exact  proof  was  made  of  the  contents)  the  defendant 
might  clear  this  by  producing  the  will,  therefore  it  was  decreed  that  the 
plaintiff  the  devisee  should  hold  and  enjoy  until  the  defendant  produced 
the  will  and  farther  order.  This  cause  was  first  decreed  by  the  late 
master  of  the  rolls,  then  affirmed  by  the  lord  chancellor  on  appeal,  and 
afterwards  by  the  house  of  lords.    1  Bro.  P.  C.  250. 

The  last  case  was  that  of  Woodruff  and  Burton,  February  1719,  and 
was  thus : 

A  devisee  brought  his  bill  against  the  heir,  and  it  being  made  to  appear 
that  there  was  such  a  bill,  as  the  plaintiff  had  suggested,  and  that  the 
defendant  had  destro^-ed  it,  the  lord  chancellor  Parher  decreed  the  de- 
fondant  to  convey  the  premises  to  the  plaintiff  in  fee,  and  to  deliver  up 
the  possession,  which  (his  honour  said)  seemed  to  him  to  be  the  most 
effectual  and  reasonable  decree. 

But  in  the  principal  case  the  c^urt  said,  there  could  be  no  decree  for 
the  possession,  nor  any  pi'esent  conveyance  to  the  plaintiff,  it  being  only 
a  remainder  of  a  term  after  the  defendant's  death ;  but  let  the  defendant 
assign  over  the  term  to  trustees,  in  trust  for  herself  for  life,  and  after- 
wards for  the  plaintiff;  and  let  her  bring  the  deeds  relating  to  the  title 
iiitr»  court,  and  pay  costs.  Reg.  Lib.  A.  1722.  fol.  232.  Entered  of  Easter 
term   172:5. 

'  See  also  this  case  particularly  wtatcil  in  the  case  of  Cowper  v.  Lord 
Cowper,  vol.   2,  720. 


CHAP,  v.]  LANCY  V.  Rx\NDLETT  409 

Whitfield  v.  Fausset  (1749-50)  1  Ves.  Sr.  387,  392.— Lord  Chancellor 
Hardwicke. — The  loss  of  a  deed  is  not  always  a  ground  to  come  into  a 
court  of  equity  for  relief :  for  if  there  was  no  more  in  the  case,  although 
he  is  intitled  to  have  a  discovery  of  that,  whether  lost  or  not,  courts  of  law 
admit  evidence  of  the  loss  of  a  deed,  proving  the  existence  of  it  and  the 
contents,  just  as  a  court  of  equity  does.  There  are  two  grounds  to  come 
into  equity  for  relief,  annexing  an  affidavit  to  his  bill.  First  where  the 
deed  is  destroyed  or  concealed  by  the  defendant ;  and  whenever  that  is  the 
case,  the  plaintiff  is  intitled  in  this  court  to  have  relief  upon  the  reason 
in  Lord  Iluiisdon's  case  in  Hob.  Another  is  where  the  plaintiff  cannot 
recover  at  law  without  making  profert  of  the  deed  in  pleading  at  law. 
If  a  man  has  lost  a  bond,  he  is  intitled  to  come  into  equity  not  only 
for  a  discovery,  but  to  have  a  decree  for  payment;  because  he  cannot 
declare  without  making  profert^  the  defendant  being  intitled  to  oyer.^ 


LANCY  I'.  RANDLETT. 

In  the  Supreme  Judicial  Court  of  Maine,  1888. 

[SO   Maine   1G9.] 

Haskell,  J.     The  orators  ask  to  be  confirmed  in  their  title  to  land 
clouded  by  the  loss  of  their  title  deed  prior  to  its  record. 
The  respondents  demur  upon  three  grounds. 

I.  For  the  want  of  jurisdiction  in  equity  over  the  subject  matter  of 
the    bill. 

II.  For  the  want  of  equity  shown  on  the  face  of  the  bill. 

III.  Because  of  a  plain  and  adequate  remedy  at  law. 

Equity  jurisdiction  for  discovery  and  relief  in  proper  cases  touching 
lost  written  instruments  is  as  old  as  equity  itself.  Sto.  Eq.  Jur.  §§  79, 
84;  Whitfield  v.  Fausset,  1  Ves.  392;  Blight's  Heirs  v.  Banks,  6  T.  B. 
Monroe,  192;  Pom.  Eq.  Jur.  §  1376, -note  3;  Campbell  v.  Sheldon,  13 
Pick.  8. 

The  bill  avers  more  than  a  dozen  years'  undisturbed  possession  under 
the  lost  deed,  and  that  the  grantor  has  repeatedly  refused  to  execute  a 
new  deed  in  its  stead,  and  puts  searching  interrogatories  for  answer  upon 
oath  concerning  the  execution  and  delivery  and  loss  of  the  missing  deed ; 
but  it  does  not  aver  that  the  loss  was  not  without  even  the  culpable 
negligence   of   the   orators   themselves ;    nor    does    it    suggest    that    the 

^  "Many  [accidents]  cannot  be  relieved  even  in  a  coui't  of  equity;  as,  if  by 
accident  a  recovery  is  ill  suffered,  a  devise  ill  executed,  a  continfjent  remainder 
destroyed,  or  a  power  of  leasing  omitted  in  a  family  settlement." — 3  Black- 
stone's  Commentaries,  431. 


410  LANCY  V.  RANDLETT  [part  i. 

respondents  were  in  any  way  responsible  or  chargeable  for  its  loss  or 
destruction. 

Equity  withholds  relief  in  causes  when  the  party  asking  it  deliberately 
makes  the  mischief  from  which  he  suffers. 

If  the  loss  of  a  deed  be  accidental  and  without  the  fault  of  the  grantee, 
thereby  subjecting  his  title  to  hazard  and  peril,  from  which  the  law 
gives  him  no  adequate  relief,  equity  will  afford  that  relief  most  suited 
to  the  necessities  of  the  case.  Hord  v.  Baugh,  7  Humph.  576 ;  Dalston  v. 
Coalsworth,  1  P.  Wms.  731,  733. 

If  the  bill  be  for  discovery,  containing  the  averments  essential  to  a  bill 
of  that  sort,  and  the  discovery  is  had  showing  facts  that  warrant  relief 
in  equity  or  at  law,  the  court  having  obtained  jurisdiction  of  the  cause 
may  award  such  relief  as  proper  for  courts  of  equity  to  grant,  if  relief 
as  well  as  discovery  be  prayed  for  in  the  bill.  Sto.  Eq.  Jur.  §§  71,  72; 
Eussell  V.  Clarke's  Ex'rs,  7  Cranch,  69.  If  the  discovery  shows  the 
proper  relief  to  be  an  award  of  damages  that  ought  to  be  ascertained  by 
p.  jury,  an  issue  can  be  framed  and  tried  in  the  same  suit  without  send- 
ing the  parties  to  an  action  at  law.    R.  S.,  c.  77,  §  30. 

But  to  obtain  jurisdiction  for  relief  in  equity,  over  a  cause  purely 
legal,  upon  the  ground  of  discovery,  the  bill  must  aver  that  the  facts 
sought  to  be  discovered  are  material  to  the  cause  of  action,  and  that  the 
orator  has  no  means  of  proving  them  in  a  court  of  law,  and  that  the  dis- 
covery of  them  by  respondent  is  indispensable  as  proof.  Pom.  Eq.  Jur. 
§  229;  Stor.  Eq.  Jur.  §  74,  and  cases  cited;  and  the  want  of  such  aver- 
ment is  fatal  on  demurrer  to  the  bill  when  jurisdiction  is  sought  in 
equity  for  discovery  and  relief  solely  upon  the  ground  of  discovery.  So, 
if  by  plea  in  such  case  these  facts  be  traversed,  it  would  seem  that  the 
issue  must  be  decided  in  favor  of  the  truth  of  the  bill,  before  discovery 
could  be  decreed. 

If  the  discovery,  as  in  most  cases,  be  in  aid  of  the  averments  of  the  bill 
that  show  the  cause  to  be  one  of  equitable  jurisdiction,  then  the  aver- 
ments of  necessity  for  discovery  are  not  essential,  and  a  demurrer  cannot 
be  sustained  for  the  want  of  them,  but  discovery  must  follow  as  a  matter 
of  course. 

The  orators'  bill  is  insufficient- for  the  want  of  equity,  inasmuch  as 
it  fails  to  show  the  circumstances  of  the  loss  of  the  missing  deed,  or  at 
lea.^t  that  the  loss  was  occasioned  without  the  orators'  fault.  For 
aught  that  appears  in  the  bill,  the  orators  may  have  designedly  destroyed 
the  missing  deed  for  some  fraudulent  purpose.  For  this  reason,  the 
deniurrer  is  well  taken  and  the  exceptions  must  be  overruled.  Hoddy  v. 
Hoard,  12  Tnd.  474.  Nor  can  the  bill  be  maintained  for  discovery  and 
I'elicf  \\\)(\\  tlie  ground  of  discovery  alone,  for  the  necessary  averments 
in  such  bill  are  wanting;  but,  if  the  orators  can  truthfully  amend  their 
bill  so  as  to  come  within  the  reasoning  of  this  opinion,  they  should  be 
allowed  to  <|o  so  upon  such  terms  as  the  court  below  shall  consider  just. 

If  the  deed  has  been  lost  without  fault  for  which  the  orators  are  in 


CHAP,  v.]  PIEKSON  v.  HUTCHINSON  411 

equity  chargeable,  it  would  seem  that  they  have  no  plain  and  adequate 
remedy  at  law.  It  is  true  that,  although  the  deed  has  not  been  recorded, 
its  contents  may  be  proved  by  parol  in  an  action  at  law;  Moses  v.  Morse, 
74  Maine,  472;  but  the  cloud  is  upon  the  record  title,  and  the  remedies 
pointed  out  by  the  learned  counsellor  for  respondents  fail  to  heal  the 
apparent  defect  of  title  shown  by  the  registry  of  deeds.  That  cloud  can 
only  be  removed  by  an  appropriate  decree  in  a  court  of  equity. 

Exceptions  overruled.^ 


PIERSON  V.   HUTCHINSON. 

Cases  at  Nisi  Prius,  1809. 

[2  Camphell  211.]  ' 

This  was  an  action  by  the  endorsee  against  the  acceptor  of  a  bill  of 
exchange. 

The  Attorney-General  in  opening  the  plaintiff's  case  stated  that  he 
should  not  be  able  to  produce  the  bill,  as  it  had  been  lost;  but  he  should 
prove  that  before  the  action  was  brought,  the  defendant  had  been  regu- 
larly called  upon  for  payment,  and  had  been  offered  an  unexceptionable 
indemnity.  According  to  the  usage  of  merchants,  he  was  thereupon 
bound  to  honour  his  acceptance  in  the  same  manner  as  if  the  bill  had 
still  remained  'in  the  plaintiff's  hands,  and  had  been  actually  presented 
to  him  in  the  usual  form. 

Lord  Ellenborough.  If  the  bill  were  proved  to  be  destroyed,  I  should 
feel  no  difficulty  in  receiving  evidence  of  its  contents,  and  directing  the 
jury  to  find  for  the  plaintiff.  Even  on  a  trial  for  forgery,  the  destruction 
of  the  instrument  charged  by  the  indictment  to  be  forged,  is  no  bar  to 
the  proceedings.     I  remember  a  case  before  Mr.  Justice  Buller,  where 

'  "A  bill  will  undoubtedly  lie,  in  many  cases  for  the  delivery  up  of  title 
deeds,  and  it  is  a  very  ancient  and  important  head  of  equity.  Lord  Redesdale 
refers  to  a  case  of  that  description  so  early  as  in  the  time  of  Edward  IV. 
(Tr.  Plead.  95,  last  Edit.).  Where  a  party  is  in  the  Possession  of  Property 
to  which  the  Deeds  relate,  such  a  Bill  may,  in  some  circumstances,  be  very 
proper;  but  where,  as  Lord  Redesdale  observes,  'the  Title  to  the  possession 
of  Deeds  and  Writings,  of  which  the  Plaintiff  prays  Possession,  depends  on 
the  validity  of  his  Title  to  the  property  to  which  they  relate,  and  he  is  not 
in  Possession  of  that  property,  and  the  evidences  of  his  Title  to  it  is  in  his  own 
power,  or  does  not  depend  on  the  production  of  the  Deeds  or  Writings  of 
which  he  prays  deliverj',  he  must  establish  his  Title  to  the  property  at  Law 
before  he  can  come  into  a  Court  of  Equity  for  delivery  of  tlie  Deeds  or 
Writings.'  "  Per  Sir  Thomas  Plumer,  V.C,  in  Armitage  v.  Wadsworth,  1815, 
1  Madd.   189,  192. 

'  S.  C.  6.  Esp.  126. 


412  HANSAED  v.  EOBINSON  [part  i. 

the  prisoner  had  destroyed  a  bank  note  he  was  accused  of  having  forged, 
b}'  swallowing  it.  He  was  acquitted  on  the  merits :  but  the  learned 
judge  who  presided  held,  that  he  might  have  been  convicted  without 
the  production  of  the  bank  note,  and  this  doctrine  was  approved  of  by 
the  whole  profession.  Plere,  however,  the  instrument  is  not  destroyed. 
It  is  lost  after  being  endorsed  by  the  payee.  It  may  now  be  in  the  hands 
of  a  bona  fide  endorsee  for  value,  who  might  maintain  an  action  upon  it 
against  the  defendant.  This  brings  it  to  the  indemnity.  But  whether  an 
indemnity  be  sufficient  or  insufficient,  is  a  question  of  which  a  court  of 
law  cannot  judge.  There  are  dicta  to  be  sure,  that  upon  the  offer  of  an 
indemnity  the  endorsee  of  a  lost  bill  may  recover  at  law ;  but  these  are 
so  contrary  to  the  principles  on  which  our  judicial  system  rests,  that  I 
cannot  venture  to  proceed  upon  them.  Since  the  plaintiff  can  neither 
produce  the  bill  nor  prove  that  it  is  destroyed,  he  must  resort  to  a  court 
of  equity  for  relief. 


Hansard  v.  Eobinson  (1827)  7  B.  &  C.  90,  93.— Lord  Tenterden,  C.  J., 
now  delivered  the  judgment  of  the  court.  This  was  an  action  on  a  bill 
of  exchange  brought  by  the  indorsee  against  the  acceptor.  The  bill  was 
not  produced  at  the  trial,  but  proof  was  given  of  the  signature  of  the 
parties,  and  other  particulars  of  the  bill,  and  that  it  was  lost  after  it  had 
become  due,  and  after  payment  had  been  required  of  the  defendant,  and 
he  had  requested  time  and  promised  pajonent. 

It  is  not  necessary  to  say  whether  any  special  action  could  have  been 
framed  and  maintained  upon  the  particular  facts  and  the  defendant's 
promise,  because  the  declaration  in  the  present  cause  is  not  founded 
upon  such  facts,  but  upon  the  bill  itself,  in  the  usual  way.  We  would  not, 
however,  be  understood  to  give  any  encouragement  to  such  an  action ;  and 
we  think  the  special  facts  cannot  properly  be  considered  as  affording  a 
satisfactory  ground  for  decision  in  this  case,  but  the  case  must  be  con- 
sidered generally,  as  an  action  brought  upon  a  lost  bill,  and  introducing 
the  general  question,  whether  such  an  action  can  be  maintained. 

Upon  this  question  the  opinions  of  judges,  as  they  are  to  be  found 
in  the  cases  quoted  at  the  Bar,  have  not  been  uniform,  and  cannot  be  rec- 
onciled to  each  other.  It  is  not  necessary  to  advert  again  to  the  cases. 
Amid  conflicting  opinions  the  proper  course  is,  to  revert  to  the  principle 
of  these  actions  on  bills  of  exchange,  and  to  pronounce  such  a  decision 
as  may  best  conform  thereto.  Now  the  principle  upon  which  all  such 
actions  are  founded  is  the  custom  of  merchants.  The  general  rule  of 
the  English  law  does  not  allow  a  suit  by  the  assignee  of  a  chose  in  action. 
The  custom  of  merchants,  considered  as  part  of  the  law,  furnishes,  in 
this  case,  an  exception  to  the  general  rule.  What,  then,  is  the  custom 
in  this  respect?  It  is,  that  the  holder  of  the  bill  shall  present  the  in- 
strument, at  its  maturity,  to  the  acceptor,  demand  payment  of  its 
amount,  and  upon  receipt  of  the  money  deliver  up  the  bill.     The  ac- 


CHAP,  v.]  Hx  parte  GKEENWAY  413 

ceptor  paying  the  bill  has  a  right  to  the  possession  of  the  instrument  for 
his  own  security,  and  as  his  voucher  and  discharge  pro  tanto  in  his  ac- 
count with  the  drawer.  If,  upon  an  offer  of  payment,  the  holder  should 
refuse  to  deliver  up  the  bill,  can  it  be  doubted  that  the  acceptor  might 
retract  his  offer  or  retain  his  money?  And  if  this  be  the  right  of  an 
acceptor,  ready  to  pay  at  the  maturity  of  the  bill,  must  not  his  right 
remain  the  same  if,  though  not  ready  at  that  time,  he  is  ready  after- 
wards; and  can  his  right  be  varied  if  the  payment  is  to  be  made  under 
a  compulsory  process  of  law?  The  foundation  of  his  right,  his  own 
security,  his  voucher,  and  his  discharge  toward  the  drawer,  remain  un- 
changed. As  far  as  regards  his  voucher  and  discharge  toward  the 
•drawer,  it  will  be  the  same  thing  whether  the  instrument  has  been 
•destroyed  or  mislaid.  With  respect  to  his  own  security  against  a 
demand  by  another  holder  there  may  be  a  difference.  But  how  is  he  to 
be  assured  of  the  fact,  either  of  the  loss  or  destruction  of  the  bill  ? 
Is  he  to  rely  upon  the  assertion  of  the  holder,  or  to  defend  an  action 
at  the  peril  of  costs?  And  if  the  bill  should  afterwards  appear  and  a 
suit  be  brought  against  him  by  another  holder,  a  fact  not  absolutely 
improbable  in  the  case  of  a  lost  bill,  is  he  to  seek  for  the  witnesses  to 
prove  the  loss,  and  to  prove  that  the  new  plaintiff  must  have  obtained  it 
after  it  became  due?  Has  the  holder  a  right,  by  his  own  negligence  or 
m.isfortune,  to  cast  this  burden  upon  the  acceptor,  even  as  a  punishment 
for  not  discharging  the  bill  on  the  day  it  became  due?  We  think  the 
custom  of  merchants  does  not  authorise  us  to  say  that  this  is  the  law. 
Ts  the  holder,  then,  without  remedy?  Not  wholly  so.  He  may  tender 
isuffieient  indemnity  to  the  acceptor,  and  if  it  be  refused,  he  may  enforce 
payment  thereupon  in  a  court  of  equity.  And  this  is  agreeable  to  the 
mercantile  law  of  other  countries.  In  the  modern  Code  de  Commerce 
of  France,  Liv.  1.  TU.  9.  Art.  1.51,  152.,  this  is  distinctly  provided.  And 
this  provision  is  not  new  in  the  law  of  that  country,  but  is  found  also 
in  the  0 rdonnance  de  Commerce  of  Lewis  the  Fourteenth,  Tit.  5.  Art.  19. 
The  rule  for  ent  !ring  a  verdict  for  the  plaintiff  must  therefore  be  dis- 
-charged. 

Rule  discharged. 


Ex  parte  GREENWAY. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1802. 

[6  Vesey  Junior  812.] 

The  object  of  this  petition  was  to  be  admitted  to  prove  under  a  Com- 
mission of  Bankruptcy  in  respect  of  a  bill  of  exchange,  alleged  to  bQ 
Jest  after  indorsement.  The  affidavits  stated,  that  the  bill  was  returned 
from  America  protested;  and  the  ship  was  captured  in  her  return;  and 
taken  into  the  Isle  of  Rhe  in  Brittany. 


414  Ex  parte  GREENWAY  [part  i. 

Lord  Chancellor.  To  enable  you  to  prove  in  respect  of  this  bill,  there 
must  be  a  most  extensive  indemnity,  even  for  the  sake  of  the  bankrupt, 
who  is  interested  in  this;  a  complete  indemnity,  going  to  all  the  conse- 
quences against  the  holder,  if  the  bill  has  not  been  paid,  and  against  any 
demand,  that  may  be  made  by  future  possible  holders,  if  it  should  have 
been  paid.  When  I  was  Chief  Justice,  I  tried  an  action  in  the  Common 
Pleas  upon  a  bill,  alleged  to  be  lost:  which  had  been  previously  indorsed 
by  the  payee.  An  indemnity  was  offered  by  bond:  but  I  nonsuited  the 
Plaintiff.  The  counsel  objected  strongly  upon  the  offer  of  indemnity; 
and  it  came  before  the  Court  upon  a  motion  for  a  new  trial;  and  there 
was  a  long  discussion  iipon  the  nature  of  these  indemnities  in  a  Court 
of  Law.  The  Court  had  not  come  to  a  decision  upon  it,  when  I  left 
them;  and  I  do  not  know  the  result.  But  I  never  could  understand,  by 
what  authority  Courts  of  Law  compelled  parties  to  take  the  indemnity. 

L^pon  the  new  doctrine  of  dispensation  with  the  profert  of  a  bond  that 
difficulty  does  not  arise;  for  there  is  the  finding  of  the  Jury  upon  the 
evidence,  that  the  instrument  is  lost;  which  is  conclusive  between  those 
parties.  That  has  been  settled  at  law,  certainly  in  opposition  to  the 
opinions  of  some  of  the  greatest  lawyers.  Since  I  have  sat  here,  I 
have  found  in  Lord  Hardwiche's  own  hand  (and  he  was  one  of  the  greatest 
lawyers  who  ever  sat  in  Westminster  Hall)  his  most  positive  declarations, 
that  upon  such  an  instrument  it  is  impossible  to  maintain  an  action  with- 
out Profert  (1  Ves.  345,  393).  The  law  is  however  now  settled  otherwise. 
I  do  not  presume  to  dispute  it;  for  it  may  be  settled  uppn  grounds  of 
pleading:  it  may  proceed  upon  a  supposed  analogy  to  the  proceedings  in 
Courts  of  Equity;  and  it  may  proceed  upon  both.  With  regard  to  the 
supposed  analogy  to  proceeidings  in  Equity,  it  is  questionable,  whether 
sufficient  attention  was  paid  to  the  consideration,  that  in  equity  the 
conscience  is  ransacked;  and  the  party  alleging,  that  the  instrument  is 
lost,  must  make  an  affidavit,  that  it  is  not  in  his  possession  or  power. 
The  consequence  is,  that  if  a  man  having  an  annuity  deed  differing  from 
the  memorial  is  dishonest  enough  to  put  it  in  the  fire,  and  then  to  say, 
it  is  lost,  he  is  to  prove  the  contents.  The  best  mode  of  doing  that 
seems  to  be  by  producing  the  memorial;  and  yet  that  memorial,  if  the 
deed  was  produced,  would  have  destroyed  the  deed. 

The  order  was,  that  the  petitioner  should  be  admitted  to  prove  upon 
giving  an  indemnity;  the  Commissioners  to  settle  a  proper  indemity. 
(Walrasley  v.  Child,  1  Ves.  341.) 


CHAP,  v.]  WHITE  V.  LOVE  JOY  415 

JACKSON  r.  HAMMOND. 
In  the  Supreme  Court  of  New  York,  1804. 

[1  Caincs  490.] 

In  this  cause,  on  an  affidavit  statinj?  a  verdict  having  been  in  1792. 
taken  for  the  pUiintiff,  subject  to  the  opinion  of  the  court,  on  a  case 
agreed  on  between  the  parties,  on  which  judgment  had  been  given,  in 
1798  for  the  plaintiff;  and  also,  that  the  nisi  prius  record  and  issue  roll 
were  not  to  be  found  in  the  offiice  of  the  clerk  of  this  court,  nor  the  nisi 
prius  record  among  the  papers  of  the  former  clerk  of  the  circuit  in  which 
the  cause  was  tried,  and  if  left  with  the  plaintiff's  attorney,  had  been 
burnt  or  lost. 

Leave  was  given  to  make  up  and  file  a  new  nisi  prius  record,  with  a 
postea  to  be  endorsed  thereon,  conformable  to  the  minutes  of  the  trial, 
and  also  to  enter  up  judgment  and  issue  execution  for  the  plaintiff,  ac- 
cording to  the  opinion  of  the  court  in  1798. 

No  opposition. 


WHITE  V.  LOVEJOY. 

In  the  Supreme  Court  of  New  York,  1808. 
[3  Johnson  448.] 

A  fieri  facias  was  issued  in  this  cause,  and  levied  on  the  goods  of  the 
defendant,  and  afterwards,  before  a  sale  of  the  goods,  it  was  burnt  with 
other  papers  by  an  accidental  fire,  which  consumed  the  house  of  the 
deputy-sheriff. 

N.  Williams,  for  the  plaintiff,  now  moved  that  a  new  fieri  facias, 
similar  to  the  one  destroyed,  might  be  made  out  and  delivered  to  the 
sheriff. 

Per  curiam.  Take  your  rule  for  a  new  fieri  facias  to  be  made  out, 
nunc  pro  tunc.     .     .     . 

Keen  v.  Jordan  (1869-70-71)  13  Fla.  327,  333.  Eandall,  C.  J.,  de- 
livered the  opinion  of  the  court.  ...  II.  The  second  ground  of 
demurrer  is,  that  the  plaintiff  is  not  entitled  to  relief  upon  the  case 
stated  in  the  bill,  and  the  question  presented  is :  Has  a  cOurt  of  chancery 
jurisdiction  to  supply  to  another  court  a  record  of  the  latter  in  place  of 
one  which  has  been  destroyed  by  accident?  The  jurisdiction  of  the 
court  of  chancery,  arising  from  accident,  is  a  very  old  head  of  equity, 
and  perhaps  coeval  with  its  existence.  But  every  case  of  accident  will 
not  justify  the  interposition  of  a  court  of  equity.     The  jurisdiction  will 


416  WHITE  V.  LOVEJOY  [part  i. 

be  maintained  only — first,  when  a  court  of  law  cannot  give  suitable  re- 
lief, and  secondly,  when  the  party  has  a  conscientious  title  to  relief. 
Both  grounds  must  concur  in  the  given  case,  for  otherwise  a  court  of 
equity  not  only  may  but  is  bound  to  withhold  its  aid.  1  Story's  Eq. 
Jur.,  79. 

Is  there  then  not  merely  some  remedy,  but  is  there  adequate  remedy 
at  law?  The  Legislature,  in  cases  like  this,  has  provided  a  method  of 
supplying  records  which  have  been  destroyed  or  lost;  but  in  such  cases, 
if  the  court  of  chancery  ever  had  jurisdiction,  the  legislative  provision 
of  a  remedy  will  not  take  away  the  jurisdiction  of  equity,  unless  by 
express  prohibition  (Case  v.  Fishlack,  10  B.  Mon.  40),  for  otherwise,  a 
court  of  law  might  oust  a  jurisdiction  rightfully  attached  in  equity. 

The  jurisdiction  of  the  court  of  chancery  in  the  case  of  lost  instru- 
ments, as  bonds,  deeds,  &c.,  was  founded  upon  the  doctrine  that  there 
could  be  no  remedy,  because  there  could  be  no  profert  of  the  instrument, 
■without  which  a  declaration  would  be  fatally  defective.  And  there  was 
another  ground  for  the  interference  of  a  court  of  equity,  and  that  is, 
that  no  other  court  could  furnish  the  same  remedy  with  the  fit  limitations 
which  might  be  demanded  for  the  purposes  of  justice,  by  granting 
relief  only  upon  the  party's  giving  a  bond  of  indemnity;  a  court  of  law 
being  incompetent  to  require  such  a  bond  as  a  part  of  its  judgment. 
1  Story's  Eq.  Jur.  82.  On  the  latter  ground  also,  courts  of  equity  had 
jurisdiction  of  remedies  upon  negotiable  instruments  which  were  lost 
or  destroyed,  for  a  court  of  law  required  that  the  plaintiff  suing  upon 
negotiable  paper  should  produce  it  at  the  trial,  which  he  could  not  do  if 
it  were  lost.    Williard's  Eq.  Jur.  52 ;  Story's  Eq.  Jur.  §  85. 

In  coming  into  equity  upon  a  lost  bond  or  covenant  on  negotiable 
instruments,  the  party  must  have  some  object  beyond  the  mere  decree 
of  the  existence  and  loss  of  the  paper ;  he  must  be  entitled  to  some  relief 
or  protection  from  the  court  beyond  the  establishment  of  the  instru- 
ment. In  the  case  of  a  lost  bond  or  note,  he  may  have  a  decree  for  its  en- 
forcement and  satisfaction.  If  a  deed  concerning  land  is  lost,  and  the 
party  prays  discovery  and  to  be  established  in  possession  under  it, 
equity  will  relieve,  for  there  is  no  remedy  at  law;  and  where  the  plaintiff 
is  out  of  possession,  there  are  cases  in  which  equity  will  interfere  upon 
lost  or  suppressed  title  deeds,  and  decree  possession  to  the  plaintiff;  but 
in  all  such  cases  there  must  be  other  equities  calling  for  the  action  of 
the  court.  1  Ves.  434-35;  3  Atk.  132;  1  Fonblanque's  Eq.  P  1.  ch.  1, 
sec.  3;  id.  ch.  3,  sec.  3.  These  citations  sufficiently  indicate  the  grounds 
of  equity  jurisdiction  in  llic  casos  of  lost  or  destroyed  papers,  without 
farther  illustration. 

The  power  of  sn])plying  a  now  record  when  (lie  original  has  been  lost 
or  destroyed,  is  one  whicli  {)ortains  to  courts  of  record  of  general  juris- 
diction, independent  of  legislation.  It  is  an  inherent  power  in  such 
courts,  and  has  ])een  acted  upon  in  this  State  in  Rhodes  v.  Mosely, 
6  Fla.,  12,  and  in  Pcarce  v.  Thackeray,  decided  at  Jan'y  Term,  1870. 


CHAP,  v.]  WHITE  V,  LOVEJOY  417 

In  Douglass  v.  Yallop,  2  Burrow,  722,  a  new  judgment  roll,  for  a  judg- 
ment rendered  thirty  years  previous  to  a  motion  to  supply  the  loss,  was 
ordered  to  be  made.  In  Jackson  v.  Smith,  1  Caines,  496,  a  new  nisi  prius 
record  was  allowed  to  be  made  up  on  motion  and  affidavit  that  the 
original  had  been  lost  or  burnt,  after  six  years.     In  White  v.  Lovejoy, 

3  Johns.  448,  a  fi.  fa.  on  which  a  levy  had  been  made  was  burnt,  and  the 
court  ordered  a  new  fi.  fa.  to  be  substituted.  The  power  has  been  long 
and  frequently  exercised  in  Alabama.  McLendon  v.  Jones,  8  Ala.  298; 
Doswell  V.  Stewart,  11  Ala.  629 ;  Dozier  v.  Joyce,  8  Porter,  303 ;  Williams 
V.  Powell,  9  Porter,  493 ;  Wilkinson  v.  Brandam,  5  Ala.  608 ;  Lyon  v. 
Boiling,  14  Ala.  753 ;  Bishop  v.  Hampton,  19  Ala.  792 ;  3  Ph.  on  Ev.,  1066. 

Upon  the  destruction  of  any  part  of  a  record  or  of  the  process,  plead- 
ings, or  orders  in  a  suit,  the  loss  may  be  supplied  by  making  up  others 
in  their  stead,  provided  the  court  be  reasonably  satisfied  that  the  pro- 
posed substitute  is  of  the  same  tenor.  Upon  that,  the  court  where  the 
suit  is  must  exercise  its  own  judgment.    Harris  et  al.  v.  McRae's  adm'r. 

4  Iredell,  81. 

The  proceedings,  in  all  the  cases  cited,  v,'ere  had  in  the  absence  of 
any  statutory  regulation,  upon  the  acknowledged  and  necessary  power  of 
the  court  to  control,  amend,  and  supply  its  own  records. 

The  jurisdiction  invoked  by  the  complainant  in  the  present  case  has 
not  been  exercised  by  any  court  of  chancery  in  this  country  or  in  England 
(so  far  as  we  have  been  able  to  discover  with  our  limited  means  of 
examination),  and  the  principles  upon  which  the  court  takes  jurisdiction 
in  the  cases  of  lost  instruments,  come  far  short  of  embracing  this  case. 
The  inherent  power  of  the  courts  to  control  their  own  records,  and  to 
supply  losses  therein,  it  seems  is  antagonistic  to  the  power  of  any  other 
court  to  interfere  and  make  records  for  them.  By  this  proceeding, 
one  court  of  special  jurisdiction  is  invoked  to  take  cognizance  of  and  to 
supply  to  another  court  of  general  jurisdiction  a  record,  in  lieu  of  one 
which  has  been  destroyed.  This  power,  once  admitted,  will  place  the 
records  of  the  courts  of  common  law  at  the  mercy  of  the  court  of 
chancery,  and  might  lead  to  an  absurd  conflict  between  the  law  and 
equity  side  of  the  court  over  the  records  of  the  court  of  common  law: 
one  party  imploring  the  conscience  of  the  one  to  seize  the  power  of  the 
other  and  control  the  history  of  its  past  action,  and  perhaps  to  compel 
the  court  of  law  to  adopt  and  acknowledge  as  a  fact  a  thing  of  which  it 
may  deny  any  knowledge,  and  against  which  action  the  other  party  may 
justly  ask  it  to  revolt  and  treat  as  an  usurpation,  because  its  own  power 
is  ample  and  adequate. 

There  is  nothing  here  requiring  the  exercise  of  the  conscience  of  the 
court  which  may  not  be  attained  by  a  simple  proceeding  according  to 
the  course  of  the  common  law,  and  therefore  chancery  has  no  office  to 
perform. 

The  decree  of  the  court  overruling  the  demurrer  must  be  reversed  upon 
both  grounds  of  demurrer. 


418  SIR  JOHN  HARRISON  v.  LORD  NORTH  [part  i. 

SIR  JOHN  HARRISON  v.  LORD  NORTH,  Ex'r  of  Lady  Montague, 

In  Chancery,  before  Lord  Chancellor  Bridgman,  1667. 

[1  Cases  in  Chancery  83.] 

The  plaintiff  was  tenant  to  the  lady  Montague  of  a  house  in  London, 
at  a  certain  rent:  he  left  the  house,  and  went  to  Oxon  to  the  late  king, 
and  then  sent  his  servant  with  the  key  of  the  house  to  the  lady,  and 
desired  her  to  re-enter  and  accept  the  surrender.  She  said  she  would 
advise  with  the  defendant  her  son-in-law,  (who  then  set  in  the  house  of 
commons,  and  acted  with  them;)  afterwards  she  refused  to  accept  of  a 
surrender.  The  house  was  made  an  hospital  by  the  parliament  for 
maimed  soldiers.  The  defendant,  as  executor  to  the  lady,  brought  debt 
at  law  against  the  plaintiff  for  rent  incurred  while  the  house  was  so 
used,  and  all  the  time.  To  be  relieved  against  which  action  was  the  scope 
of  the  bill. 

Finch  p.  Quer.  It  is  but  reasonable,  that  if  a  tenant  be  put  out  by 
such  against  whom  he  can  have  his  remedy  over,  that  he  notwithstanding 
be  liable  to  pay  his  rent  to  the  lessor.  But  here  the  plaintiff  hath  no 
remedy  over ;  and  it  was  an  act  of  force  in  the  parliament,  which  is  par- 
doned by  the  act  of  oblivion,  and  so  no  remedy  over,  and  the  king  hath 
pardoned  all  his  arrears  of  rent.  The  law  of  England  is  ex  vi  termini, 
stricter  in  the  matter  of  rents  than  other  nations;  for  redditus  and 
reddere  is  accepted  as  restituere,  and  render  implies  apprendre. 

Maynard,  for  the  defendant.  The  plaintiff  hath  a  pitiful  case ;  but  not 
such  as  this  court  can  relieve;  for  the  law  and  equity  is  all  one  in  this 
case;  and  if  the  latter  be  no  good  bar  at  law,  it  is  not  good  in  equity. 
And  he  insisted,  that  if  rebels,  the  king's  own  subjects,  do  an  act  of 
force,  and  hold  a  tenant  out,  that  is  no  equity  to  excuse  him  from  pay- 
ment of  his  rent;  and  cited  the  case  of  Carter  and  Cummins  about  two 
years  since  in  this  court,  where  the  plaintiff'  being  a  tenant  of  a  wharf, 
which  by  an  extraordinary  flood  was  carried  all  away,  brought  his  bill  to 
be  relieved  against  paying  of  his  rent ;  but  all  the  relief  he  had  was  only 
against  the  penalty  of  the  bond,  which  was  broken  for  nonpayment  of 
the  rent ;  and  the  defendant  ordered  only  to  bring  debt  for  his  rent.  And 
he  insisted,  that  a  surrender  of  lands  is  no  cause  for  apportionment  of 
rent,  which  is  stronger  than  the  principal  case.  The  Lord  Chancellor 
took  time  to  advise;  but  declared,  if  he  could,  he  would  relieve  the 
plaintiff.' 

'  In  J'anidiiio  v.  Jane,  l(i7(),  Alpyn  20,  tlip  j)1aintiiT  defliircd  in  dclit  on 
a  lease  rendering  rent  at  the  four  usual  feasts,  for  rent  behind  for  three 
years.  "The  defendant  pleads  that  a  certain  Cernian  Prince,  by  name  Prince 
Jlupcrt,  an  alien  born,  had  invaded  the  realm  with  a  hostile  army  of  men;  and 
with    the    same    force    did    enter    upon    the    defendant's    possession,    and   him 


CHAP,  v.]  POWELL  V.  POWELL  419 

BARNESLEY  v.  POWELL. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1750. 

[Ambler  102.] 

Petition,  by  the  solicitor  for  Barnesley  (who  was  a  lunatic),  setting 
forth,  that  he  had  expended  great  sums  of  money  in  prosecuting  suits  in 
this  Court,  and  at  law,  against  the  defendant  Powell,  on  behalf  of  the 
lunatic,  and  praying  that  he  may  be  at  liberty  to  enter  up  a  judgment 
with  a  stay  of  execution  against  the  lunatic,  for  such  moneys,  that 
thereby  he  may  have  a  lien  on  his  real  estates. 

Lord  Chancellor.  An  action  cannot  be  maintained  against  a  lunatic, 
but  it  must  be  against  the  person  that  employed  the  solicitor,  who  is  the 
committee.  If  a  solicitor  prosecutes  to  a  decree,  he  has  a  lien  on  the 
estate  recovered  in  the  hands  of  the  person  recovering  for  his  bills;  but 
if  the  client  should  die,  the  solicitor  has  no  such  lien  on  the  estate 
in  the  hands  of  the  heir  at  law,  unless  it  should  be  necessary  to  have 
the  suit  revived,  and  then  the  lien  will  revive  too.  In  the  present  case 
the  committee  has  a  lien  on  the  lunatic's  estate,  and  I  will  assist  the 
solicitor  as  much  as  I  can,  therefore  declare  he  stands  in  the  place  of 
the  committee,  and  has  a  lien  on  the  lunatic's  estate.  Q.  If  he  had  such 
lien  ?    The  counsel  for  the  solicitor  doubted  of  it. 

N.  B.  Nobody  appeared  for  Powell,  and  the  petitioner  had  in  his 
hands  the  title-deeds  of  the  estate,  which  seems  to  be  the  best  security. 


POWELL  V.  POWELL. 

In  Chancery,  1708. 

[Precedents  in  Chancery  278.]' 

In  this  cs.se  was  cited  a  case  where  a  tenant  in  tail  contracted  for 
sale  of  his  lands,  and  received  part  of  the  consideration  money;  and  upon 
his  not  making  good  the  sale  by  fine  or  common  recovery,  a  bill  was 

expelled,"  so  that  the  defendant  was  out  of  possession  during  the  time. 
The  Court  sustained  a  demurrer  to  the  plea.  "And  this  difference  was  taken, 
that  where  the  law  creates  a  duty  on  charge,  and  the  party  is  disabled  to  per- 
form it  without  any  default  in  him,  and  hath  no  remedy  over,  there  the  law 
will  excuse  him.  .  .  .  But  when  a  party  by  his  own  contract  creates 
a  duty  or  charge' upon  himself,  he  is  bound  to  make  it  good,  if  he  may,  not- 
withstanding any  accident  by  inevitable  necessity,  because  he  might  have 
provided  against  it  by  his  contract." 
^  S.  C.  case  in  1  NEq.  Ca.  Abr.  265. 


420  TOLLET  v.  TOLLET  [part  i. 

brought  in  equity  to  compel  him  thereto,  and  a  decree  pronounced  ac- 
cordingly; he  notwithstanding  stood  out  all  process  against  him  to  a 
contempt,  and  then  died  before  the  sale  was  perfected;  and  after  his 
death  a  bill  was  brought  against  his  issue  in  tail  to  revive  the  decree 
against  him,  but  was  dismissed;  for  though  the  tenant  in  tail  had  power 
by  the  fine  or  recovery  to  have  barred  his  issue,  yet  since  he  did  not 
make  use  of  that  power,  his  issue  could  not  be  bound  by  any  other  act  of 
his.' 


TOLLET  V.  TOLLET. 

In  Chancery,  before  Sir  Joseph  Jekyll,  M,  E.,  1728. 

[2  Peere  Williams  489.]  ' 

The  husband  by  virtue  of  a  settlement  made  upon  him  by  an  ancestor, 
was  tenant  for  life,  with  remainder  to  his  first,  etc.,  son  in  tail  male, 
with  a  power  to  the  husband  to  make  a  jointure  on  his  wife  hy  deed 
under  his  hand  and  seal. 

The  husband  having  a  wife,  for  whom  he  had  made  no  provision,  and 
being  in  the  Isle  of  Man,  by  his  last  will  under  his  hand  and  seal,  devised 
part  of  his  lands  within  his  power  to  his  wife  for  her  life. 

Object.  This  conveyance  being  by  a  will  is  not  warranted  by  the  power 
which  directs  that  it  should  be  by  deed,  and  a  will  is  a  voluntary  con- 
veyance, and  therefore  not  to  be  aided  in  a  court  of  equity. 

Master  of  the  Rolls:  This  is  a  provision  for  a  wife  who  had  none 
before,  and  within  the  -same  reason  as  a  provision  for  a  child  not  before 
provided  for;  and  as  a  court  of  equity  would,  had  this  been  the  case 
of  a  copyhold  devised,  have  supplied  the  want  of  a  surrender,  so  where 
there  is  a  defective  execution  of  the  power,  be  it  either  for  payment  of 
debts  or  provision  for  a  wife,  or  children  improvided  for,  I  shall  equally 
supply  any  defect  of  this  nature :  the  difference  betwixt  a  non-execution 
and  a  defective  execution  of  a  power;  the  latter  will  always  be  aided  in 
equity  under  tlie  circumstances  mentioned,  it  being  the  duty  of  every  man 
to  pay  his  debts,  and  a  husband  or  father  to  provide  for  his  wife  or  child. 
l>ut   this  court  will  not  help  the  non-execution  of  a  power,  since  it  is 

'  "And  tho  case  of  Weale  and  Lower  was  cited,  where  tenant  in  tail  had  sold 
at  a  full  value,  and  received  the  consideration  money,  and  had  covenanted  to 
levy  a  fine,  and  was  decreed  to  do  it;  yet  dying  (though  in  prison  for  con- 
tempt for  not  performing  the  decree)  the  issue  in  tail  could  not  be  bound 
l)y  it."  Cited  in  Fox  v.  Crane,  1693,  2  Vern.  304,  30G.  This  is  probably  the 
principal  case. 

'S.  C.  iMosely  4C>;  2  Eq.  Cas.  Abr.  233,  pi.  10;  1  Smith's  Leading  Cases  in 
Kquity,  Ft.  1,  3G5,  with  notes. 


CHAP,  v.]  TOLLET  V.  TOLLET  421 

against  the  nature  of  a  power,  wliich  is  left  to  the  free  will  and  election 
of  the  party  whether  to  execute  or  not,  for  which  reason  equity  will 
not  say  he  shall  execute  it,  or  do  that  for  him  which  he  does  not  thinlt 
fit  to  do  for  himself.' 

^  In  Williams  v.  Cudd,  1886,  26  S.  C.  213,  218,  a  married  woman,  having,'  pre- 
viously conveyed  the  land  for  value,  her  husband  joining,  had  attempted  to 
relinquish  to  her  vendee  her  inheritance.  In  her  relinquishment  the  word 
"inheritance"  had  been  omitted  frimi  the  formula  "all  her  estate,  interest, 
and  inheritance"  which  was  prescribed  by  statute.  The  heirs  now  sue  the 
vendee  for  a  partition,  asserting  that  the  instrument  was  inefTectual  to  re- 
linquish their  inheritance.     The  court  found  the  law  as  follows: 

"But  it  is  strongly  pressed  upon  us  that,  this  being  a  case  for  partition,  the 
extraordinary  jurisdiction  of  equity  may  be  invoked  to  consider  that  done 
which  was  intended  to  be  done,  and  to  reform  the  instrument  by  adding  the 
word  "inheritance,"  so  as  to  conform  to  the  requirements  of  the  law.  We 
regret  to  say  that  we  know  of  no  authority  to  do  so,  either  in  law  or  equity. 
If  this  were  one  of  those  cases  in  which  the  court  may  interpret  executory 
contracts  so  as  to  effectuate  the  intention,  there  might  be  much  force  in  some 
of  the  views  presented  in  behalf  of  the  appellant.  But  clearly  this  is  not  one 
of  the  cases  in  which  the  intention  of  the  parties  is  a  controlling  considera- 
tion. The  question  is  not  what  was  intended  to  be  done,  but  sharply  what 
was  actually  done. 

"It  is  true,  according  to  the  authorities,  that  there  are  cases  in  which  the  Court 
of  Equity  will  aid  the  defective  execution  of  a  power,  provided  the  parties 
really  intended  to  execute  it,  and  only  failed  in  a  matter  of  form,  and  pro- 
vided also  that  the  power  was  created  by  a  will,  family  settlement,  or  other 
similar  instrument.  But,  as  we  understand  it,  the  Court  of  Equity  will  not 
undertake  to  do  so  in  respect  to  powers  created  by  statute.  "The  doctrine 
is  confined  to  powers  created  by  the  voluntary  act  of  persons  in  wills,  deeds, 
and  settlements ;  it  does  not  extend  to  those  created  and  regulated  by  statute. 
The  defective  execution  of  statutory  powers,  in  the  failure  to  comply  with 
the  prescribed  requisites  cannot  be  aided  in  equity."  2  Pom.  Eq.  Jur.,  §  287, 
and  numerous  authorities  in  note.  "And,  indeed,  it  may  be  stated  as  gen- 
erally, although  not  universally  true,  that  the  remedial  power  of  Courts  of 
Equity  does  not  extend  to  the  supplying  of  any  circumstance,  for  the  want 
of  which  the  legislature  has  declared  the  instrument  void;  for  otherwise 
equity  would,  in  effect,  defeat  the  very  policy  of  the  legislative  enactments." 
2  Story  Eq.  Jur.,  §  177,  and  note. 

"This  is  specially  true  in  regard  to  statutory  powers  given  to  married 
women,  who,  outside  of  the  enabling  act,  are  entirely  without  capacity.  "As 
it  is  incompetent  to  show  by  parol  that  all  the  requirements  of  the  law  were 
complied  with  by  the  officer  taking  the  acknowledgment,  it  follows  that  a 
Court  of  Equity  has  no  power  to  act  upon  such  evidence  or  to  correct  or 
amend  a  defective  certificate.  The  sufficiency  of  the  acknowledgment  is 
to  be  determined  solely  by  what  appears  upon  the  certificate.  2  Scrib.  Dower, 
344,  345 ;  Stewart  Husb.  &  Wife,  §§  376,  404,  and  notes ;  Knowles  v.  McCamly, 
10  Paige  342.  In  this  latter  case  it  was  held,  that  'when  the  legal  estate 
is  in  a  feme  covert,  her  deed  or  contract,  conveying  or  agreeing  to  convey 
such  estate,  if  not  acknowledged  by  her  according  to  the  statute,  is  void  in 
equity  as  well  as«  at  laWj'  etc." 


1422  OSGOOD  v.  FRANKLIN  [part  i. 

And  in  this  case,  the  legal  estate  being  in  trustees,  they  were  decreed 
to  convey  an  estate  to  the  widow  for  life  in  the  lands  devised  to  her  by 
her  husband's  will. 


Osgood  v.  Franklin,  1816,  2  Johns.  Ch.  1,  19.— The  Chancellor 
[Kent].  1.  The  first  question  arising  on  the  merits  is,  whether 
Mary  Osgood,  as  sole  surviving  executor  of  Walter  Franklin,  deceased, 
was  authorized  to  sell  the  real  estate. 

The  part  of  the  will  of  Walter  Franklin  relating  to  the  question  is 
as  follows:  "The  xvhole  residue  of  my  estate  I  give  and  bequeath  as 
follows :  one  eighth  to  Sarah  Corsa,  &c. ;  one  eighth  to  Mary  Wister,  &c. ; 
to  ray  wife,  one  eighth,  &c. ;  to  my  daughters,  Maria  and  Sarah,  each  one 
eighth;  to  my  brothers,  John,  Thomas,  and  Samuel,  each  one  eighth,  &c. 
And  /  order  that  the  money  or  effects  he  distrihiited  and  divided  from 
time  to  time,  as  it  can  be  raised  from  my  debts  and  estate  by  my  ex- 
ecutors, hereafter  named,  &c. ;  and  they  are  to  keep  a  sufficiency  un- 
divided, to  pay  off  all  legacies,  and  to  keep  the  estate  as  much  on 
interest  or  rents  as  they  can  for  the  general  benefit.  And  I  appoint  my 
wife  with  my  three  brothers  aforesaid  to  be  executors,  but  on  this  condi- 
tion, that  if  they  owe  me  any  money  at  my  decease,  their  appointment, 
or  acting  as  executors,  shall  not  be  a  release  of  their  debts,  but  the 
same  shall  be  paid;  and  if  they  do  not  act  on  this  condition,  they  are 
not  to  be  executors.  1  give  to  my  executors  that  (they)  may  act,  and  to 
the  major  part  of  them,  their  heirs  or  executors,  full  power  to  sell  any 
or  all  my  real  estate  not  already  devised,  &c.  I  give  to  each  of  my  ex- 
ecutors who  shall  act,  2001.  in  lieu  of  all  other  commissions  and  re- 
wards, &c." 

If  the  case  turned  upon  the  dry  question,  whether  by  the  common  law 
a  naked  power  without  interest  to  executors  to  sell,  would  survive,  I 
should  deem  the  authority  of  Lord  Coke  decisive.  He  lays  down  the 
rule  repeatedly  in  his  Institutes,  (Co.  Lift.  112.  b.  113.  a.  181.  b.)  as 
one  well  established,  that  the  yjower  would  not  survive;  and  the  same 
law  was  declared  by  Dodderidge,  J.,  the  contemporary  of  Coke,  and 
author  of  the  Touchstone.  (Shep.  Touch,  tit.  Testament,  pi.  9.  p.  429.) 
These  writers  were,  in  their  time,  and  have  been  in  every  period  since, 
regarded  as  oracles  of  the  common  law,  and  they  must  have  been 
familiar  with  the  old  authorities.  I  do  not,  therefore,  consider  the 
observations  of  Mr.  Ha^-grave,  (Co.  Litt.  113.  a.  note.)  even  after  giving 
them  ;ill  the  wo'^ilit  justly  due  to  bis  talents  and  learning,  as  being 
sufficient  to  overturn  a  rule  so  strongly  established;  and  especially  when 
it  has  been  shown  by  Mr.  Powell.  (Treatise  on  Devises,  p.  292-310.)  that 
he  is  by  no  moans  borne  out  by  the  cases  to  which  he  refers.  The  statute 
of  21  Hon.  VIII.  c.  4.  affords  no  small  confirmation  of  the  doctrine  in 
Coke;  for  the  preamble  declares  the  opinion  that  a  sale  by  executors 
under  a  power  in  a  will  "  cjui  in  no  wise  be  good  or  effectual  in  the  law, 


CHAP,  v.]  OSGOOD  V.  FRANKLIN  423 

unless  the  same  bargain  and  sale  be  made  by  the  whole  number  of  the 
executors  named  to  and  for  the  same." 

But  while  I  thus  acknowledge  the  rule  of  the  common  law,  I  am 
equally  satisfied  that  this  cause  is  not  governed  by  it.  In  the  first  place, 
this  case  comes  within  the  exception  stated  by  Lord  Coke;  for  here  wag 
an  interest  sufficient  to  feed  the  power,  and  keep  it  alive  in  the  hands 
of  the  surviving  executors.  The  executors  were  vested  by  the  will  with 
an  absolute  interest  in  an  undivided  moiety  of  the  whole  residuary  es- 
tate, on  which  the  power  was  to  operate,  and  they  were  also  directed  to 
keep  the  whole  of  this  residuary  estate  as  much  as  possible  on  interest,  or 
rents,  for  the  general  benefit.  This  authority  to  lease,  and  this  interest 
in  the  subject  itself,  must  be  sufficient  to  exempt  the  power  from  the 
character  of  a  mere  naked  authority  to  a  stranger.  It  is  not  necessary 
that  the  interest  coupled  with  the  power  should  be  a  legal  interest.  An 
equitable  estate  is  sufficient,  and  is  regarded  in  this  Court  as  the  real 
interest.  So  it  was  held  by  Lord  Hardwicke  in  Hearle  v.  Greenbank; 
(3  Atk.  714.)  nor  does  the  character  of  the  power  depend  upon  the  quan- 
tity of  interest.  A  trustee  invested  only  with  the  use  and  profits  of  the 
land  for  the  benefit  of  another,  has  an  interest  connected  with  his  power. 
This  was  so  understood  in  Bergen  v.  Bennett,  (1  Gaines's  Cases  in  Error, 
16.)  and  in  Eyre  v.  Countess  of  Shaftsbury,  (2  P.  Wms.  102.)  a  testa- 
mentary guardian,  with  authority  to  lease,  was  held  to  possess  a  power 
coupled  with  an  interest,  and  capable  of  survivorship. 

In  the  next  place,  here  was  a  trust  charged  on  the  executors,  in  the 
direction  given  to  them  to  distribute  the  proceeds  of  the  residuary  estate ; 
and  according  to  the  settled  doctrine  of  the  Court,  the  trust  does  not 
become  extinct  by  the  death  of  one  of  the  trustees.  It  will  be  continued 
in  the  survivor,  and  cannot  be  permitted,  in  any  event,  to  fail  of  execu- 
tion for  want  of  a  trustee.  In  this  case,  one  of  the  trusts  under  the 
will  depended  upon  a  sale.  In  Garfoot  v.  Garfoot  (M.  15  Car.  II.  1.  Ch. 
Cas.  35.)  lands  were  devised  to  the  wife  for  life,  and  then  to  be  sold  by 
the  executors,  for  younger  children's  portions,  and  the  wife  and  ex- 
ecutors died,  and  the  younger  children  exliibited  their  bill  to  compel  the 
heir  to  sell ;  and  on  demurrer  by  the  heir,  on  the  ground  that  the  executor 
had  but  an  authority  which  died  with  him,  the  demurrer  was  overruled. 
So,  also,  in  Barnes's  case,  (Sir  Wm.  Jones,  352.  Cro.  Car.  382.  S.  C.) 
lands  were  devised  to  the  wife  for  life,  and  then  to  be  sold  by  the  ex- 
ecutors for  payment  of  debts  and  legacies,  or  as  one  of  the  reports  of  the 
case  says,  to  be  divided  among  the  nephews.  One  of  the  executors  died, 
and  it  was  held,  on  a  case  sent  from  chancery  for  the  opinion  of  the 
judges  at  law,  that  the  survivor  could  sell,  though  the  executors  had  an 
authority,  and  no  interest.  Whatever,  therefore,  might  have  been  the 
character  of  the  power  in  this  case,  the  strict  rule  of  the  common  law 
could  never  be  permitted,  in  this  Court,  to  defeat  the  trust  connected 
with  the  execution  of  the  power.  Wliether  the  residuary  legatees  might 
not  have  come  in  and  taken  the  land  itself,  instead  of  the  proceeds 


424  OSGOOD  v.  FRANKLIN  [part  i. 

which  the  executors,  as  trustees,  were  to  distribute,  and  thereby  have 
arrested  the  execution  of  the  power  to  sell,  is  a  iwint  not  now  before  me. 
No  such  application  was  ever  made;  the  power  to  sell  was  left  by  the 
legatees  to  its  full  operation ;  and  they  come  too  late,  after  the  sale,  to 
make  their  election,  or  to  raise  such  a  question. 

Either  of  these  grounds  appears  to  me  to  be  sufficient  to  support  the 
sale  by  Mrs.  Osgood,  as  the  sole  surviving  executor.  There  are  other 
considerations,  also,  which  add  great  weight  to  this  conclusion. 

The  intention  of  the  testator  is  much  regarded  in  the  construction  of 
these  powers,  and  they  are  construed  with  greater  or  less  latitude  in  ref- 
erence to  that  intent.  It  was  evidently  the  testator's  intention  here, 
that  the  power  should  not  fail  as  long  as  there  was  an  executor  to  execute 
it,  for  the  power  is  given  even  to  the  major  part  of  the  acting  executors, 
and  it  was  to  descend  to  the  legal  representatives,  both  real  and  personal, 
of  the  executors.  In  other  words,  it  was  made  transmissible  by  descent 
and  by  will;  and  though  it  is  left  doubtful  as  to  the  portion  of  the  ex- 
ecutors from  whom  that  transmission  was  to  proceed,.  I  should  take  the 
better  opinion  to  be,  that  it  was  to  proceed,  as  in  the  case  of  other  joint 
interests  or  trusts,  from  the  last  survivor,  and  that  the  testator  could 
not  have  intended  such  incongruity  and  confusion  as  the  union  of  the 
heirs  and  executors  of  a  deceased  executor  with  the  surviving  executors. 
The  testator  had  also  in  contemplation  the  possible  case  of  his  wife  act- 
ing alone;  for  he  imposes  a  condition  upon  the  other  executors,  without 
complying  with  which  they  were  not  to  be  considered  as  appointed. 

I  am  satisfied,  for  these  reasons,  that  it  would  be  repugnant  to  the  in- 
tention of  the  will,  to  the  rules  of  law,  and  to  the  principles  of  this 
Court,  to  defeat  a  power  uniting  so  much  trust,  confidence,  and  interest, 
by  applying  to  it  the  strict  doctrine  of  the  common  law,  relative  to  mere 
naked    authorities.' 

^  "Mj'.  Sugden  infers  [2  Siigd.  on  Pow.  173],  from  the  authorities,  that 
although  equity  will  supply  the  defective  execution  of  a  power  in  proper  cases, 
yet  it  is  an  immutable  rule,  that  a  non-execution  shall  never  be  ?,ided;  nor 
is  it  a  ground  for  relief  that  the  party  was  prevented  by  death  from  an  in- 
tended execution.   .    .    . 

"But  when  there  is  a  trust  the  court  will  interfere.  In  Brown  v.  Higgs,  8 
Ves.  .574,  Lord  Eldon  states  the  principle  of  all  the  cases  on  this  subject  to 
be,  that  if  the  power  is  one  which  it  is  tlie  duty  of  the  party  to  execute,  made 
his  duty  by  the  requisition  of  the  will,  put  upon  him  as  such  by  the  testator, 
who  has  given  him  ayi  interest  extensive  enough  to  enahle  him  to  discharge  it, 
he  is  a  trustee  for  the  exercise  of  his  power,  and  without  discretion  whether 
he  will  exercise  it  or  not;  and  the  court  adopts  the  principle  relative  to 
trusts,  and  will  not  permit  his  negligence,  accident,  or  other  circumstances,  to 
disappoint  the  interest  of  those  for  whose  benefit  he  is  called  ujjon  to  execute 
it."    Per  Johnston,  Ch.,  in  Withers  v.  Yeadon,  1845,  1  Kich.  Eq.  324. 


CHAP,  v.]  BEEWER  V.  IIEEBERT.  425 

BREWER  V.  HERBERT. 

In  the  Court  of  Appeals  of  Maryland,  1869. 

[30  Maryland  301.] 

Miller,  J.,  delivered  tlie  opinion  of  the  Court.' 

After  the  execution  of  the  written  contract  for  the  sale  of  the  house 
and  lot,  and  before  the  day  fixed  for  delivery  of  possession  and  payment 
of  the  first  instalment  of  purchase  money,  the  house  was  accidentally 
destroyed  by  fire,  without  fault  of  either  party  or  of  the  tenant  then  in 
possession  of  the  same.  The  vendor  had  a  fee  simple  title  to  the  property, 
and  at  the  proper  time,  under  the  contract,  offered  to  deliver  possession  of 
the  premises  in  the  condition  in  which  they  then  were.  This  the  vendee 
refused  to  receive  because  of  the  destruction  of  the  house  by  fire,  and  the 
main  question  in  the  case  is,  can  he  on  this  ground  successfully  resist 
this  application  in  equity  by  the  vendor  for  a  specific  performance  of  the 
contract  ? 

In  contracts  of  this  kind  between  private  parties,  the  vendee  is  in. 
equity  the  owner  of  the  estate  from  the  time  of  the  contract  of  sale, 
and  must  sustain  the  loss  if  the  estate  be  destroyed  between  the  agree- 
ment and  the  conveyance,  and  will  be  entitled  to  any  benefit  which  may 
accrue  to  it  in  the  interim.  This  doctrine,  notwithstanding  the  dictum 
in  Stent  v.  Bailey,  2  P.  Wms.  290,  to  the  contrary,  was  plainly  an- 
nounced and  settled  by  the  decision  of  Lord  Eldon,  in  Paine  v.  Meller, 
6  Ves.  349,  a  case  very  similar  in  its  circumstances  to  the  present,  where 
it  was  held  that  if  there  was  no  objection  to  the  title  of  the  vendor,  or  it 
had  been  accepted  in  fact  by  the  vendee  before  the  houses  were  burned, 
no  solid  objection  to  the  bill  for  specific  performance  could  be  founded 
on  the  mere  effect  of  the  accident  before  conveyance :  ''for  if  the  party," 
says  the  Lord  Chancellor,  "by  the  contract  has  become  in  equity  the 
owner  of  the  premises,  they  are  his  to  all  intents  and  purposes.  They 
are  vendible  as  his,  chargeable  as  his,  capable  of  being  encumbered  as 
his;  they  may  be  devised  as  his;  they  may  be  assets;  and  they  would 
descend  to  his  heir."  This  decision  has  always  been  regarded  as  fixing 
the  true  equitable  rule  in  such  cases.  It  was  recognized  by  Sir  Thomas 
Plumer,  in  Harford  v.  Purrier,  1  Madd.  Ch.  287,  and  in  Rawlins  v. 
Burgis,  2  Ves.  &  Bea.  387,  and  by  Lord  Chancellor  Manners,  in  Revell  v. 
LIussey,  2  Ball  &  Beatt.  287.  From  these  and  other  authorities  of  equal 
weight  annovmcing  the  maxim  that  equity  regards  as  done  that  which, 
was  agreed  to  be  done,  is  deduced  as  the  established  doctrine  in  equity, 
that  from  the  time  the  owner  of  an  estate  enters  into  a  binding  agree- 
ment for  its  sale,  he  holds  the  same  in  trust  for  the  purchaser,  and  the 
latter  becomes  a  trustee  of  the  purchase  money  for  the  vendor,  and  being 

*A  statement  of  facts  and  arguments  of  attorneys  have  been  omitted. 


426  BREWER  v.  HERBERT  [part  i. 

thus  in  equity  the  owner,  the  vendee  must  bear  any  loss  'fhich  may 
happen,  and  is  entitled  to  any  benefit  which  may  accrue  to  the  estate 
in  the  interim  between  the  agreement  and  the  conveyance.  1  Sug.  on 
Vend.  228,  388  to  391:  2  Powell  on  Cont.  69;  Dart  on  Vend.  &  Pur- 
chasers, 114  to  118;  2  Story's  Eq.,  sec.  1212.  The  contract  here  is  not 
for  a  sale  at  a  future  day;  it  does  not  use  in  this  respect  prospective 
or  contingent  terms.  Its  language  is,  the  vendor  ^^has  this  day  sold  tu" 
the  vendee  his  house  and  lot,  which  clearly  imports  a  binding  contrae^, 
ihen  executed  and  consumated.  By  such  terms  the  title  in  equity  passe.* 
from  the  date  of  the  contract,  and  if  there  were  nothing  else  in  it  thert- 
would  be  no  room  for  argument,  for  it  would  be  impossible  to  withdraw* 
the  case  from  the  operation  of  the  rule  above  stated. 

But  it  has  been  earnestly  and  strenuously  urged  by  the  appellant's 
counsel,  that  as  the  contract  contains  an  agreement  by  the  vendor  to 
deliver  possession  of  the  house  and  lot  to  the  vendee,  on  the  first  of  April, 
1866,  the  destruction  of  the  house  by  fire  before  that  period,  rendered 
performance  by  the  vendor  of  this  part  of  the  contract  impossible,  and 
he  cannot,  therefore,  either  in  law  or  equity  ask  the  vendee  to  perform  his 
part  of  it;  and  this  circumstance,  it  is  insisted,  distinguishes  the  case 
from  those  cited  and  prevents  it  from  falling  within  the  principle 
established  by  them.  Let  us  test  the  soundness  of  this  argument.  The 
vendee  knew  before  and  at  the  time  of  the  contract  there  was  a  tenant 
in  possession,  whose  term  would  not  expire  until  the  first  of  April,  and 
the  first  instalment  of  the  purchase  money  is  made  payable  on,  and  in- 
terest on  the  deferred  payments  runs  from  that  day.  The  subject  matter 
of  sale  is  realty — a  lot  of  ground  with  a  house  upon  it,  described  as  a 
house  and  lot.  The  agreement  as  to  delivery  is  not  like  the  usual  cov- 
enant by  a  tenant  in  a  lease,  to  deliver  in  as  good  condition  and  repair  as 
when  the  contract  was  made.  There  is  also  no  difficulty  about  delivery, 
except  that  the  premises  were  not,  as  to  the  buildings  upon  them,  in 
the  same  condition  as  at  the  date  of  the  contract.  The  question  then 
resolves  itself  into  this,  does  the  fact  of  the  insertion  into  a  contract  like 
the  present  for  the  sale  of  real  estate,  of  an  agreement  to  deliver  posses- 
sion at  a  future  day,  make  any  difference  in  the  application  of  the  rule  ? 
It  is  true  it  does  not  appear  in  the  cases  cited  there  were  in  the  con- 
tracts any  stipulations  as  to  delivery  of  possession  at  a  future  day,  nor  is 
this  circumstance  alluded  to,  but  they  explicitly  say  it  is  the  passing  of 
the  title  in  equity  which  throws  the  risk  of  loss  upon  the  vendee,  and 
entitles  him  to  accruing  benefits.  To  this,  as  we  have  seen,  a  convey- 
ance is  not  necessary,  nor  is  payment  of  the  purchase  money  or  any  part 
of  it;  for  in  TTampson  v.  Edelen,  2  II.  &  J.  66,  this  Court  has  decided  that 
^'a  contract  for  liiiid  J)nna  fide  made  for  a  valuable  consideration,  vests  the 
equitable  interest  in  the  vendee  from  the  time  of  the  execution  of  the 
contract,  although  the  money  is  not  paid  at  that  time."  See  also  Siter, 
James  &  Co.'s  Appeal,  26  Penn.  State,  Rep.  180.  Neither  can  possession 
nor  delivery  of  possession  be  necessary,  for  if  the  contract  had  been  silent 


CHAP,  v.]  BREWER  V.  HERBERT  427 

on  this  subject,  the  vendor  would  have  had  the  right  to  retain  possession 
at  least  until  the  first  of  April,  when  the  first  instalment  of  the  pur- 
chase money  was  payable,  and  if  the  vendee  had  obtained  possession  be- 
fore, he  would  have  been  restrained  in  equity  from  exeroisinpr  any  acts 
of  ownership  prejudicial  to  the  inheritance;  (Crockford  v.  Alexander, 
15  Ves.  138;  Reed  v.  Lukens,  44  Penn.  Rep.  202)  and  yet  the  equitable 
title  would  all  the  while  have  been  in  him,  subject  to  his  disposition 
by  deed  or  will,  and  liable  for  his  debts.  If  then  in  the  absence  of  a 
stipulaton  to  deliver  at  a  future  day,  there  is  an  implied  right  in  the 
vendor  to  retain  possession  until  that  period,  and  this  would  make  no 
■difference  as  to  the  liability  of  the  vendee  for  an  intermediate  loss,  how 
can  the  insertion  of  such  a  stipulation  have  in  equity  any  different  effect? 
The  whole  foundation  of  this  doctrine  of  equity  is  that  the  equitable 
title  and  interest  passes  by  the  contract  of  sale,  and  from  the  time  of  its 
execution,  and  it  contemplates  delivery  of  possession  as  well  as  pay- 
ment of  purchase  money,  and  a  conveyance  at  a  future  period.  Hence, 
Sir  Edward  Sudoen  and  Sir  Thomas  Plumer  both  cite,  as  in  exact 
accord  with  the  decision  of  Lord  Eldon,  the  rule  of  the  civil  law,  where 
the  very  case  is  put  in  the  Institutes :  "Cum  autem  emptio  et  vendiiio 
<;ontracta  sit,  periculum  rei  venditce  statim  ad  emptorem  periinet,  tametsi 
adhuc  ea  res  emptori  tradita  non  sit:  Itaque,  si  cedes  total  vel  aliqua  ex 
parte  incendio  consumptw  fuerint — emptoris  damnum  est,  cui  necesse  est, 
licet  rem  non  fuerit  nactus,  pretium  solvere."  In  sales  of  personal 
property,  delivery  of  the  goods  sold  is  not  necessary  to  pass  title  as 
between  the  parties,  where  the  statute  of  frauds  has  been  gratified  by 
4?iving  something  in  earnest,  or  payment  of  the  whole  or  part  of  the 
purchase  money,  or  a  sufficient  note  or  memorandum  in  writing  of  the 
bargain;  and  in  such  case  the  property  is  at  the  buyer's  risk  before  de- 
livery. Franklin  &  Armfield  v.  Long,  7  G.  &  J.  418.  And  even  where 
the  seller  remaining  in  actual  possession  agrees  to  deliver  the  property 
at  a  particular  place,  and  it  is  destroyed  by  fire  before  such  delivei-y, 
the  loss  will  fall  on  the  purchaser.  Terry  v.  Wheeler,  25  N.  Y.  Rep.  520. 
Where  sales  are  made  under  authority  of  a  Court,  the  contract  is  not 
regarded  as  consummated  until  it  has  received  the  Court's  sanction  or 
ratification,  and,  therefore,  any  loss  happening  before  confirmation  falls 
upon  the  vendor.  Ex  parte  Minor,  11  Ves.  559 ;  Wagner  &  Marshall  v. 
Cohen,  6  Gill,  102.  But  where  a  loss  occurs  after  confirmation,  by  which 
the  contract  is  consiimmated,  it  falls  upon  the  vendee,  even  though  no 
purchase  money  has  been  paid,  and  the  vendor  remains  in  possession. 
This  was  expressly  decided  in  Robertson  v.  Skelton,  12  Beav.  260,  where 
Lord  Langdale  also  said :  "In  equity  the  estate  belongs  to  the  purchaser 
from  the  date  of  the  order  to  confirm  the  report,  and  the  right  of  pos- 
session belongs  to  the  vendor  till  the  purchase  money,  for  which  it  is 
security,  has  been  paid."  Again,  if  we  look  to  the  contract  itself,  and 
gather  therefrom  the  intent  of  the  parties,  it  is  clear  from  the  language 
used,  their  intention  was  that  the  equitable  title  and  interest  should  pass 


423  BEEWER  v.  HERBERT  [part  i. 

from  the  day  of  its  execution.  Upon  this  point  its  terms  are  too  positive 
and  explicit  to  admit  of  doubt.  Delivery  of  possession  and  payment 
of  purchase  money  were  postponed  to  a  future  day  for  the  convenience 
of  each  party  respectively,  and  we  cannot  construe  the  agreement  to 
deliver,  into  a  condition  that  the  contract  shall  be  void  if  there  is  any 
change  in  the  state  or  value  of  the  property  on  the  day  of  delivery,  nor 
interpolate  any  such  words  into  the  instrument.  We  are,  therefore, 
constrained  to  hold  the  argument  founded  on  this  delivery  clause,  to  be 
unavailing  to  the  appellant. 

But  it  is  said  specific  execution  of  contracts  is  in  all  cases  not  a 
matter  of  absolute  right,  but  of  sound  discretion  in  the  Court,  and  as  the 
vendor  cannot  now  deliver  the  house  which  was  the  main  inducement  to 
the  vendee  to  buy,  and  constituted  the  chief  value  of  the  property,  it 
would  be  inequitable  to  enforce  the  contract  as  against  him.  If  this 
objection  were  sound,  this  doctrine  of  losses  and  benefits  could  never 
have  been  established.  But  whilst  it  is  conceded  an  application  for 
specific  performance  is  always  addressed  to  the  sound  discretion  of  the 
Court,  yet  where  a  contract  respecting  real  estate  is  in  writing,  and  is 
in  its  nature  and  circumstances  unobjectionable,  it  is  as  much  a  matter 
of  course  for  a  Court  of  equity  to  decree  a  specific  performance  of  it, 
as  it  is  for  a  Court  of  law  to  give  damages  for  a  breach  of  it.  Smoot  v. 
Rea  &  Andrews,  19  Md.  405;  2  Story's  Eq.  sec.  751.  "The  fairness  or 
hardship  of  a  contract  like  all  its  other  qualities,  must  be  judged  of  at  the 
time  it  was  entered  into,  not  by  subsequent  events."  If  it  was  then 
certain,  mutual,  fair  in  all  its  parts,  and  for  an  adequate  consideration, 
it  is  immaterial  that  by  force  of  subsequent  circumstances,  it  has  become 
less  beneficial  to  one  party  unless  such  change  is  in  some  way  the  fault 
of  the  party  seeking  its  specific  execution.  Revell  v.  Hussey,  2  Ball.  & 
Beatt.  288;  Lawder  v.  Blachford,  Beatty's  Rep.  526;  Webb  v.  Railway 
Co.  9  Hare,  129;  Low  v.  Treadwell,  3  Fairfield,  541;  Fry  on  Specific 
Performance,  93,  98.  Adherence  to  principle  compels  the  Courts  to 
overlook  the  hardship  of  particular  cases.  But  the  doctrine  upon  which 
this  decision  rests,  is  founded  in  strict  justice  and  equity,  for  whilst  the 
vendee  may  think  it  hard  to  be  compelled  to  pay  for  that  which  he  can- 
not have  in  the  condition  it  was  when  he  purchased  it,  the  vendor,  with 
equal  justice,  might  think  it  hard  to  lose  his  money  after  a  bona  fide  sale 
of  his  property,  because  of  an  accident  accruing  to  it  without  fault  on  his 
part.  It  is  to  be  remembered  too  that  whilst  the  rule  burthens  the  vendee 
with  a  loss,  it  also  entitles  him  to  all  benefits.  Thus  where  a  reversionary 
interest  is  agreed  to  be  purchased  and  lives  drop,  or  one  agrees  to  pur- 
chase an  estate  in  consideration  of  a  life  annuity  to  the  vendor,  and  the 
cestui  que  vie  dies,  or  whore  there  is  a  sudden  rise  in  the  value  of  the  land 
from  its  being  required  for  a  public  purpose,  before  conveyance,  in  all 
such  cases  the  vendee  reaps  the  benefit.  So  in  the  case  before  us,  if  a 
valuable  mine  had  been  discovered  on  the  premises  the  day  after  the 
contract,  or  by  any  unforeseen  or  unexpected  circumstances  their  value 


CHAP,  v.]  BREWEK  V.  HERBERT  429 

had  been  increased  a  hundred  fold,  the  benefit  would  have  resulted  to 
the  vendee,  and  the  vendor  could  not  have  been  released  from  his  con- 
tract.   We  cannot  therefore,  sustain  this  objection  to  the  bill. 

It  appears  that  at  the  date  of  the  contract  the  vendor  held  a  policy 
of  insurance  upon  the  house,  which  by  accident  he  allowed  to  expire 
without  renewal  before  the  fire,  and  of  this  the  vendee  received  from 
him  no  notice.  A  similar  state  of  facts  existed  in  Paine  v.  Meller,  and 
was  held  to  constitute  no  objection  to  the  vendor's  bill.  It  is  admitted 
there  was  no  understanding  between  the  parties  that  the  vendor  should 
keep  the  policy  alive.  They  did  not  contract  on  any  such  basis.  After 
the  contract  the  vendee  had  an  insurable  interest  in  the  house  and  in  the 
absence  of  all  agreement  on  the  subject,  the  presumption  is,  he  intended 
to  protect  himself  by  insuring  in  his  own  name,  or  to  take  the  risk  of  a 
failure  to  insure.  The  vendor  was  not  bound  to  keep  up  the  insurance 
or  give  notice  to  the  vendee  of  its  having  expired.  If  the  policy  had 
existed  at  the  time  of  the  loss,  the  vendor  could  have  recovered  from  the 
insurance  company,  but  being  trustee  of  the  premises  for  the  vendee,  he 
would  be  bound  in  equity  to  account  to  the  latter  for  the  money  so 
received  (Reed  v.  Lukens,  44  Penn.  Rep.  200)  ;  but  his  failure  to  renew 
or  to  give  notice  cannot  deprive  him  of  his  right  to  enforce  the  con- 
tract of  sale. 

It  also  appears  there  was  at  the  date  of  the  contract  a  judgment 
against  the  vendor  for  $2,363.38,  but  he  had  at  that  time  entered  an 
appeal  from  the  judgment  to  the  Court  of  Appeals,  and  given  an  appeal 
bond  with  security  amply  sufficient  for  that  purpose  to  pay  the  amount 
of  the  judgment  with  costs,  in  case  he  should  fail  to  prosecute  his  appeal 
with  eifect.  The  authorities  are  clear  that  equity  will  not  compel  a  vendee 
to  take  an  imperfect  or  defective  title,  yet  cases  of  high  authority  are  to 
be  found  in  which  a  pecimiary  charge  against  which  adequate  security 
has  been  given,  has  been  held  not  to  constitute  a  defect  in  title,  and 
also  where  equity  has  enforced  the  agreement  where  a  perfect  title  can 
be  made  at  the  time  of  the  decree.  But  this  judgment  thus  appealed 
from,  with  appeal  bond  given,  does  not  in  the  sense  in  which  Courts 
of  equity  use  the  terms,  make  this  such  an  imperfect,  or  defective,  or 
encumbered  title,  as  will  prevent  specific  execution,  and  especially  not 
where  the  decree  itself,  as  that  appealed  from  in  fact  does,  can  pro- 
tect the  vendee  by  providing  that  the  judgment  debt  may  be  paid  by 
him  out  of  the  purchase  money  due  on  the  contract  and  in  discharge 
thereof. 

We  have  bestowed  upon  the  case  our  best  care  and  consideration.  We 
find  nothing  in  the  authorities  cited  by  the  appellant's  counsel  sufiScient 
to  overthrow  the  doctrine  upon  which  we  have  based  our  decision,  and 
can  discover  no  ground  upon  which  in  justice  and  equity,  the  appellee 
can  be  denied  the  relief  he  seeks.     The  decree  must  be  affirmed. 

Decree  affirmed. 


430  PUSEY  V.  SIR  EDWAED  DESBOUVRIE  [part  i. 

Section  2.     Mistake. 


PUSEY  V.  SIR  EDWARD  DESBOUVRIE. 

In  Chancery,  defore  Lord  Chancellor  Talbot,  1734. 

[3  Peere  Williams  315.]  ' 

Sir  Edward  Desbouvrie  was  a  freeman  of  London,  and  possessed  of 
a  very  great  personal  estate.  He  had  a  wife,  with  whom  he  had  com- 
pounded as  to  her  customary  part,  and  had  a  son  (the  defendant)  to 
whom  he  had  given  very  considerable  sums  of  money  in  order  to  enable 
him  to  trade.     He  had  also  one  daughter. 

The  father  made  his  will,  giving  (inter  al.)  to  his  daughter  £10,000, 
upon  condition  that  she  should  release  her  orphanage  part,  together  with 
all  her  claim  or  right  to  his  personal  estate  by  virtue  of  the  custom  of 
the  city  of  London,  or  otherwise,  and  made  his  son  executor,  his  daughter 
being  about  the  age  of  twenty-three  years. 

After  the  father's  death  it  was  agreed  between  the  daughter  and  the 
brother  that  she  should  accept  of  her  legacy  of  £10,000,  and  upon  the 
terms  whereon  it  was  given  her  by  her  father's  will,  that  is,  she  to  release 
all  her  right  by  virtue  of  the  custom,  etc.,  which  release  was  accordingly 
prepared,  and  before  she  executed  it,  her  brother  informed  her  that  she 
had  it  in  her  election  to  have  an  account  of  her  father's  personal  estate, 
and  to  claim  her  orphanage  part,  and  her  uncle  was  then  present.  But 
the  daughter  at  that  time  declared  she  would  accept  of  the  legacy  left 
her  by  her  father,  that  being  a  sufficient  provision  for  any  young  woman ; 
and  thereupon  she  executed  the  release,  being  then  about  twenty-four 
years  old,  and  the  brother  paid  to  her  the  £10,000  and  interest.  The 
daughter  afterward  married  one  Mr.  Pusey,  an  attorney  at  law,  who 
brought  a  bill  to  set  aside  this  release,  charging  that  the  personal  estate 
of  which  the  father  died  possessed  was  much  above  £100,000,  the  daugh- 
ter's share  of  which  by  the  custom  would  amount  to  upward  of  £40,000, 
that  the  mother  having  been  compounded  with  for  her  customary  part, 
the  freeman's  personal  estate  was  to  be  distributed  as  if  there  was  no 
wife,  consequently  the  dead  man's  part  was  one  moiety,  and  the  children's 
part  the  other;  and  that  the  brother,  the  defendant,  Sir  Edward  Desbou- 
vrie, had  been  advanced  in  his  father's  lifetime  by  his  father  at  different 
times  with  several  great  sums  of  money,  the  whole  whereof  would 
amount  to  a  full  advancement  of  the  son;  so  that  the  plaintiff  Pusey, 
in  right  of  the  daughter  his  wife,  was  entitled  to  a  moiety  of  her  father 
the  freeman's  personal  estate. 

The  defendant  the  brother  pleaded  this  release. 

Against  which,  on  behalf  of  this  plaintiff,  at  first  it  was  argued  that  as 
the  bill  was  brought  to  set  aside  the  release,  the  defendant  ought  not 
to  be  admitted  to  plead  it  in  bar,  the  rule  being,  von  potest  adduci  ex- 

*  Same  case  is  more  briefly  reported  in  2  Equity  Cases  Abridged,  270,  pi.  24. 


CHAP,  v.]        PUSEY  V.  SIR  EDWARD  DESBOUVRIE  431 

ceptio  ejusdem  rei  cujus  petitur  dissolutio.  But  the  Lord  Chancellor 
here  interrupted  the  counsel,  saying,  this  was  every  day's  practice;  and 
that  otherwise  no  release  or  award  could  be  pleaded  to  a  bill  that  was 
brought  to  set  aside  the  same. 

Then  it  was  urged  that  no  computation  or  account  had  as  yet  been 
taken  of  the  father's  personal  estate,  and  that  it  could  not  be  imagined 
the  daughter  intended  to  present  her  brother  with  £30,000,  or  that  she 
knew  what  her  right  was ;  that  she  was  not  apprised  that,  by  reason  of 
her  mother's  being  compounded  with,  the  children's  share,  instead  of 
a  third,  was  a  moiety;  or  that  her  brother,  the  defendant,  being  fully 
advanced  by  his  father  in  his  lifetime,  this  was  a  bar  to  him  of  his 
orphanage  part;  and  though  at  law  it  was  said  ignorantia  juris  non 
excusat,  yet  if  any  one  should  take  advantage  of  another's  mistake  in 
the  law,  even  without  any  fraudulent  suggestion  or  practice  made  use  of 
by  him,  it  would  be  against  conscience  so  to  do,  and  they  put  this  case : 
Suppose  A  should  devise  lands  to  B  and  his  heirs,  and  B  should  die  in 
the  life  of  the  testator,  and  then  the  testator  dies,  after  which  the  testa- 
tor's heir,  not  knowing  that  by  law  the  devise  to  B  is  void  (by  B's  dying 
in  the  life  of  the  testator)  should  for  a  trifle  release  his  right  to  a  val- 
uable estate  to  the  heir  at  law  of  such  devisee ;  surely  such  release  would 
not  stand  good ;  and  as  it  was  out  of  the  father's  power  by  devise  or 
otherwise  to  debar  any  of  his  children  of  that  share  which  they  are 
entitled  to  by  virtue  of  the  custom;  so  here  it  was  somewhat  hard  in  the 
father  to  induce  his  daughter  by  any  words  in  his  will  to  give  away  and 
release  what  she  had  an  undoubted  right  to;  and  admitting  there  was 
no  direct  fraud  or  misrepresentation,  here  was,  however,  suppressio  veri. 
though  not  suggestio  falsi;  and  in  this  case,  since  it  would  not  be  pre- 
tended that  the  daughter  could  have  meant  to  give  away  £30,000  to  her 
brother,  though  he  had  asked  for  it,  therefore  this  release  ought  not  to 
be  made  use  of  in  a  court  of  equity  to  bar  the  daughter  of  that  right 
which  she  did  not  know  she  herself  had,  and  much  less  intended  to  give 
away. 

On  the  other  side,  it  was  said  to  deserve  consideration  that  the  father 
did  by  his  will  give  this  legacy  of  £10,000  to  his  daughter,  upon  condition 
that  she  should  release  all  her  right  by  the  custom ;  and  though  it  could 
not  be  said  here  was  a  positive  injunction  on  the  daughter  to  do  so,  yet 
in  all  probability  it  was  intended  as  a  recommendation  by  the  father, 
who  might  think  £10,000  a  reasonable  and  honorable  provision  for  the 
daughter,  as  she  herself  declared  she  thought  it  was  when  she  gave  this 
release ;  and  the  father  might  be  desirous  that  his  son,  who  was  to  support 
his  name,  should  have  the  rest  of  his  estate;  that  the  daughter  might 
reasonably  have  a  great  regard  for  the  intentions  of  her  deceased  father 
(for  which  she  was  highly  to  be  commended)  and  might  thereby  be 
induced  to  comply  with  such  intention,  at  the  same  time  that  she  knew 
in  strict  justice  there  was  more  due  to  her  by  virtue  of  the  custom. 

That  however  it  was  plain  the  brother  had  acted  in  this  case  without 


432  PUSEY  V.  SIE  EDWAED  DESBOUVRIE  [part  r. 

the  least  appearance  of  fraud  when  he  told  her,  before  she  executed  the 
release,  that  she  might,  if  she  pleased,  call  him  to  account  for  the  whole 
personal  estate  of  her  father,  and  have  her  orphanage  part  thereof;  that 
this  being  the  solemn  act  and  deed  of  the  party,  executed  by  her  freely 
and  without  any  sort  of  compulsion  or  misrepresentation,  and  in  compli- 
ance with  her  own  father's  will;  and  since,  if  the  daughter  was  not 
informed  of  the  custom  of  London,  it  was  her  own  fault  and  not  her 
brother's;  for  these  reasons  it  was  said  the  deed  of  release  ought  not  to 
be  set  aside. 

Lord  Chancellor.  I  do  not  see  that  any  manner  of  fraud  has  been 
made  use  of  in  this  case,  but  still  it  seems  hard  a  young  woman  should 
suffer  for  her  ignorance  of  the  law,  or  of  the  custom  of  the  City  of 
London ;  or  that  the  other  side  should  take  advantage  of  such  ignorance. 
T  remember  well  that  in  this  very  case  where  the  wife  has  been  com- 
pounded with  as  to  her  customary  part,  not  only  the  counsel  have 
differed,  but  the  court  themselves  have  varied  in  their  determinations. 
It  has  for  instance  been  held  and  determined  by  the  court  that  if  the 
husband,  a  freeman  of  London,  has  compounded  with  the  wife  before  the 
marriage  as  to  her  customary  part,  this  being  the  husband's  own  pur- 
chase, he  ought  to  have  as  well  his  wife's  customary  part  as  his  own ;  but 
now  a  different  resolution  seems  to  have  prevailed,  viz.,  that  where  the 
wife  is  compounded  with  before  marriage,  it  should  be  taken  as  if  there 
was  no  wife,  and  consequently  the  testator  shall  have  one  half  and  the 
children  the  other.  And  if  the  court  themselves  have  not,  till  very 
lately,  agreed  in  what  shares  or  proportions  these  customary  parts  shall 
go,  the  daughter  surely  might  be  well  ignorant  of  her  right  and  ought  not 
to  suffer,  or  give  others  any  advantage,  by  such  her  ignorance.  Neither 
can  it  be  inferred  with  sufficient  certainty  what  the  father  recommends 
in  this  case;  he  rather  seems  to  leave  it  to  his  daughter's  option,  either 
to  claim  her  customary  part  or  release  her  right  thereto  and  accept  the 
legacy. 

It  is  true,  it  appears,  the  son,  the  defendant,  did  inform  the  daughter 
that  she  was  bound,  either  to  waive  the  legacy  given  by  the  father  or  to 
release  her  right  by  the  custom;  and  so  far  she  might  know  that  it  was 
in  her  power  to  accept  either  the  legacy  or  orphanage  part ;  but  I  hardly 
think  she  knew  she  was  entitled  to  have  an  account  taken  of  the  personal 
estate  of  her  father,  and  first  to  know  what  her  orphanage  part  did  amount 
to ;  and  that,  when  she  should  be  fully  apprised  of  this,  then,  and  not  till 
then,  she  was  to  make  her  election,  which  very  much  alters  the  case;  for 
probably  she  would  not  have  elected  to  accept  her  legacy  had  she  known, 
or  been  informed,  what  her  orphanage  part  amounted  unto  before  she 
waived  it  .iikI  accepted  the  legacy. 

It  would  give  light  into  this  cause  to  know  what  might  be  the  value  of 
the  father's  personal  estate  at  his  death,  and  (if  the  parties  think  fit) 
what  was  the  value  thereof  when  the  will  was  made;  because  it  has  been 
said  to  have  been  increased  by  the  father  between  the  time  of  making  his 


CHAP,  v.]       LAMMONT'S  HEIRS  v.  BOWLY'S  HEIRS  433 

will  and  his  death;  and  also  to  know  what  the  son  has  received  in  his 
father's  lifetime  from  his  father  for  or  toward  his  advancement. 

Therefore  let  the  plea  stand  for  an  answer,  saving  the  benefit  thereof 
until  the  hearing;  and  let  the  defendant,  the  son,  answer  not  as  to  par- 
ticulars (for  that  I  do  not  expect)  but  by  way  of  computation  in  gross 
as  to  these  points.' 


LAMMONT'S  HEIRS  AND  DEVISEES  v.  BOWLY'S  HEIRS. 

In  the  Court  of  Appeals  of  Maryland,  1825. 

[6  Harris  v.  Johnson's  500.] 

One  William  Lux  by  his  will,  devised  to  Agnes  Lux,  his  wife,  "for  and 
during  her  natural  life,  my  tract  of  land  called  Chatsworth,  with  the 
dwelling  house,  and  all  the  buildings  and  improvements  thereon  (save 
and  except  the  rope- walk).  And  I  give  to  my  son  George  Lux,  his  heirs, 
&c.,  my  tract  of  land  called  Chatsworth,  &c.,  but  in  case  my  said  son 
should  die  before  he  attains  of  legal  age,  and  without  issue,  then  I  be- 
queath the  said  land  to  my  son's  wife  and  her  assigns  to  be  at  her  own 
will  and  disposal,  as  it  originally  was  (save  and  except  five  acres  to  be 
laid  oif  in  a  long  square,  &c.,  and  that  said  five  acres,  together  with  the 
rope-walk  and  all  the  buildings,  &c.,  I  give  to  my  nephew  and  partner, 
Daniel  Bowly,  his  heirs,")  &c. 

Daniel  Bowly,  the  nephew,  believed  that  he  had  no  title  to  the  five 
acres,  unless  George  Lvix,  the  testator's  son,  died  ivithin  age  and  without 
■issue,  and  on  his  having  issue,  supposed  the  son  to  have  a  clear  title  to 
the  five  acres.  Under  that  impression  he  was  privy  to  a  sale  of  that  part 
of  Chatsworth  by  George  Lux,  to  Daniel  Lammont  (ancestor  of  the  com- 
plainants), for  a  fair  and  valuable  consideration,  and  permitted  Daniel 
Lammont  to  take  possession  of  it  and  to  enjoy  it  for  many  years  un- 
molested. Afterwards  being  advised  that  the  effect  of  the  devise  was 
to  give  him  these  five  acres,  independent  of  the  contingency  of  George 
Lux's  coming  of  age,  or  dying  ivithout  issue,  he  instituted  an  ejectment 
for  them  and  recovered.  Whereupon  the  purchaser,  Lammont,  filed  his 
bill  to  stay  proceedings  at  law.  From  the  decree  of  the  Baltimore  County 
Court,  sitting  as  a  court  of  equity,  dismissing  the  bill  the  complainants 
appealed.^ 

'  It  appears  from  the  Register's  book  that  on  the  8th  of  May,  1735,  upon  the 
defendant's  motion  it  was  alleged,  that  the  suit  was  agreed  between  the 
parties;  it  was  therefore  prayed  that  the  plaintiflF's  bill  might  be  dismissed 
without  costs;  which  on  consent  of  the  plaintiff's  counsel  was  ordered  ac- 
cordingly.— Reporter's    note. 

"  The  statement  pf  the  case  is  shortened. 


434  LAMMONT'S  IIEIES  v.  BOWLY'S  HEIRS  [part  u 

Williams,  Taney  and  Harper  for  the  appellants. 

R.  Johnson  and  Wirt  (Attorney-General  of  U.  S.)  for  the  respondents. 

Stephen,  J.,  delivered  the  opinion  of  the  Court/ 

The  complainants,  who  are  representatives  of  Lammont,  filed  a  bill  on 
the  equity  side  of  Baltimore  county  court,  to  obtain  an  injunction  to 
stay  proceedings  at  law,  and  to  have  a  conveyance  of  all  the  right  and 
title  of  Bowly's  representatives,  to  the  purchases  made  by  Lammont  in 
his  life-time,  executed  to  them.  The  county  court,  with  the  consent  of 
the  parties,  decreed  pro  forma  a  dismissal  of  the  complainant's  bill,  with 
costs  to  the  defendants;  from  which  decree  the  defendant's  have  ap- 
pealed to  this  court.  The  question  now  to  be  decided  is,  whether  or 
not  they  have  shown  sufBcient  grounds  of  equity  to  entitle  them  to  the 
relief,  which  they  come  here  to  obtain  ?  And  whether  they  are  so  entitled, 
depends  upon  the  agency  which  Bowly  had  in  the  purchases  made  by  their 
deceased  ancestor,  and  the  knowledge  he  had  of  his  rights  at  the  time 
they  were  made.  The  principle  involved  in  the  decision  of  this  question 
is  an  important  one,  as  well  on  account  of  its  immediate  bearing  upon 
this  case,  as  of  the  influence  and  operation  it  may  hereafter  have  in 
deciding  questions  of  title  which  may  arise  under  similar  circumstances. 
The  question  presented  for  the  decision  of  this  court  is  simply  this, 
whether  a  man,  having  a  legal  title  to  a  parcel  of  land,  but  who  is  igno- 
rant of  his  right,  forfeits  his  title  to  that  land,  by  concealing  his  right, 
when  he  knows  that  another  is  abovit  to  purchase  it  from  a  third  person  ? 
And  this  question  is  to  be  decided  upon  the  principles  of  equity  and  con- 
science, which  can  never  inflict  a  punishment  upon  innocence,  or  decree 
a  forfeiture,  when  there  has  been  no  fault.  On  the  contrary,  it  is  at  all 
times  the  anxious  wish  of  a  court  of  chancery  to  relieve  against  for- 
feitures and  penalties,  where  the  principles  of  justice  and  equity  do 
not  forbid  it.  Has  then  the  conduct  of  Daniel  Bowly  been  such  as  to 
merit  the  infliction  of  punishment  at  the  hands  of  this  court?  Because 
a  punishment  it  is  termed  by  the  authorities  which  treat  upon  the  sub- 
ject, and  they  speak  of  the  forfeiture  as  a  punishment  inflicted  by  reasoia 
of  the  guilt  of  the  party  in  not  disclosing  his  right.  It  would,  at  the 
first  blush,  seem  quite  siifficient  to  ask,  how  can  a  man  disclose  a  title  of 
Avhich  he  has  no  knowledge  ?  To  the  common  sense  of  the  world  this 
would  seem  to  be  an  impossibility,  and  the  law,  which  is  a  system  of 
written  reason,  never  enforce?  a  vain  or  impossible  thing.  It  is  proved 
by  all  the  witnesses  who  speak  upon  the  subject,  that  they  never  heard 
of  Bowly's  claiming  any  title  to  the  property  in  question,  until  long 
after  the  purchases  were  made  by  Lammont,  and  all  of  them  were  his 
neighbours,  and  some  of  them  his  most  intimate  friends.  Nor  is  it  a 
matter  of  surprise  that  Bowly  was  unacquainted  with  the  operation  of 
law  upon  that  clause  of  William  Lux's  will,  under  which  his  representa- 
tives now  claim  title  to  the  property  in  controversy,  since  it  appears  that 
the  judicial  tribunals  of  the  state  entertained  different  opinions  upon  the- 

'  Only  a  part  of  ilu;  opinion  is  given. 


CHAP,  v.]      LAMMONT'S  HEIRS  v.  BOWLY'S  HEIRS  435 

true  construction  of  it,  aided  as  they  were  by  all  the  lif;hts  of  science  in 
their  exposition  of  it.  It  may  then  be  safely  asslamed  to  have  been  at 
least  a  doubtful  question,  and  one  upon  which  it  is  not  unreasonable  to 
say,  that  Bowly  might  have  been  in  the  dark.  If  then  he  was  ignorant 
of  his  title,  what  says  the  law  upon  the  subject?  In  1  Powell  on  Con- 
tracts, 131,  132,  133,  after  stating  that  there  might  be  either  an  express  or 
tacit  assent  to  a  contract  or  agreement,  he  says,  "  a  tacit  assent  may 
arise  in  several  ways — It  may  be  inferred  from  inaction,  or  forbearance 
of  acting.  Thus  a  man,  by  his  silence,  in  case  he  be  present,  and  ac- 
quainted with  what  is  doing,  is  supposed  to  give  his  assent  to  what  is 
then  done;  unless  it  appears  that  he  was  awed  into  silence,  or  any  way 
hindered  from  speaking."  "  And  in  such  cases,  assent  is  presumed  even 
against  an  infant;  for  it  is  meant  as  a  punishment  for  his  concealing 
his  right,  by  which,  an  innocent  person  is  drawn  in  to  advance  his 
money."  If  then  a  tacit  assent  is  imputed  to  infants,  who  are  peculiarly 
the  objects  of  a  court  of  chancery's  care  and  protection,  it  can  only  be 
upon  the  ground  of  knowing  their  rights,  and  a  culpable  and  fraudulent 
concealment  of  such  knowledge.  The  same  author  says,  in  page  134, 
"  in  order  to  warrant  us  in  concluding  from  a  man's  silence,  that  he  has 
relinquished  his  right,  two  things  are  necessary — The  first  is,  that  he 
should  know  that  what  belongs  to  him  is  conveying  to  another;  for  when 
one  forbears  to  act  through  mere  ignorance,  it  can  have  no  eifect " — and 
"  secondly,  that  he  should  be  voluntarily  silent,  though  he  has  full  liberty 
to  speak."  So  in  1  Fonblanque,  161 — The  author  says,  "  there  is  also 
an  implied  as  well  as  an  express  assent;  as  where  a  man,  who  has  a  title 
and  knows  of  it,  stands  by,  and  either  encourages,  or  does  not  forbid  the 
purchase,  he  shall  be  bound,  and  all  claiming  under  him,  by  it.  Neither 
shall  infancy  or  coverture  be  any  excuse  in  such  case.  And  this  seems 
a  just  punishment  for  his  concealing  his  right,  by  which  an  innocent  man 
is  drawn  in  to  lay  out  his  money."  It  is  then  upon  the  principle,  that  the 
party  committed  a  fraud  by  concealing  his  right,  that  he  becomes  bound, 
and  all  claiming  under  him.  In  Niven  vs.  Belknap,  2  Johnson's  Rep. 
589,  the  same  principle  is  recognized  by  Thompson,  Justice,  that  where  a 
man  has  a  title,  and  knows  of  it,  and  either  encourages,  or  does  not 
forbid  the  purchase,  he,  and  all  claiming  under  him,  shall  be  bound  by 
such  purchase;  and  in  support  of  his  opinion  he  refers  to  1  Fonblanque, 
161.  In  Levy  vs.  The  Bank  of  the  United  States,  1  Binney's  Rep.  27, 
the  case  was  this;  a  forged  check  was  credited  as  cash  in  the  holder's 
bank  book,  and  he  being  afterwards  informed  that  the  check  had  been 
forged,  under  a  mistake  of  his  legal  rights,  agreed  that  if  the  check  was 
a  forgery,  he  would  not  take  advantage  of  the  deposit.  Shippen,  chief 
justice,  decided,  that  the  party  was  not  bound  by  his  agreement,  it  being 
made  under  a  mistake  of  his  right.  In  this  case  the  chief  justice  says, 
"  the  case  of  Penn  and  Lord  Baltimore  is  decisive  to  this  point.  I  was 
present  at  the  agreement  half  a  century  ago,  and  heard  Lord  Hardwicke 
say,  though  it  is  not  mentioned  in  the  printed  report,   that   if  Lord 


436  LAMMONT'S  HEIES  v.  BOWLY'S  HEIES  [part  i. 

Baltimore  made  tlie  agreement  in  question,  under  a  mistake  of  his  right 
to  another  degree  of  latitude,  he  ought  to  be  relieved,  but  that  he  was 
not  mistaken."  In  Green  vs.  Price,  1  Munford,  453,  Judge  Tucker  lays 
down  the  law  to  be,  that  if  a  man  has  an  equitable  title  to  lands,  and 
knows  of  it,  and  either  encourages,  or  does  not  fori)id  the  purchase,  he, 
and  all  claiming  under  him,  shall  be  bound,  by  it;  and  in  support  of  his 
opinion  he  refers  to  1  Fonblanque,  B.  1  ch.  3,  s.  4.  Thus  it  appears, 
that  some  of  the  most  enlightened  and  eminent  judges  of  our  country, 
liave  given  their  sanction  to  the  doctrine,  that  a  party  is  not  bound  by 
his  silence,  unless  he  has  a  knowledge  of  his  right,  and  fraudulently 
conceals  it  where  he  ought  to  speak.  In  Bize  vs.  Dickason,  1  T.  R.  285, 
Lord  Mansfield  in  delivering  the  opinion  of  the  court,  is  reported  to 
have  said,  ''the  rule  had  always  been,  that  if  a  man  has  actually  paid,  what 
the  law  would  not  have  compelled  him  to  pay,  but  what  in  equity  and  con- 
science he  ought,  he  cannot  recover  it  back  again  in  an  action  for  money 
had  and  received.  But  where  money  is  paid  under  a  mistake,  which 
there  was  no  ground  to  claim  in  conscience,  the  party  may  recover  it  back 
again  by  this  kind  of  action."  Evans,  in  his  essays,  treating  upon  mis- 
takes of  law,  lays  down  the  law  to  be,  that  where  no  natural  obligation 
intervenes,  even  what  is  paid  under  a  mistake  in  law,  may  be  recovered 
back;  and  he  refers,  in  support  of  his  opinion,  to  certain  decisions  of 
Lord  Kexyon  and  Lord  Mansfield,  to  the  same  effect,  and  observes,  that 
he  conceives  it  may  now  be  positively  stated,  that  this  opinion  is  adopted 
in  the  English  law.  In  Evans  vs.  Llewellyn,  2  Brown's  Chancery  Cases, 
150,  it  is  decided,  that  a  conveyance  obtained  from  persons  uninformed 
of  their  rights,  should  be  set  aside,  though  there  was  no  actual  fraud  or 
imposition.  In  Hunt  vs.  Rousmanier,  8  Wheat.  214,  the  chief  justice,  in 
speaking  of  the  case  of  Lansdowne  vs.  Lansdowne,  says,  if  it  be  law,  it 
has  no  inconsiderable  bearing  on  this  cause.  There  are  certainly  strong 
objections  to  this  decision  in  other  respects ;  but  as  a  case  in  which  relief 
has  been  granted,  or  a  mistake  in  law,  it  cannot  be  entirely  disregarded. 
He  then  goes  on  to  say — "  Although  we  do  not  find  the  naked  principle 
that  relief  may  be  granted  on  account  of  ignorance  of  law,  asserted  in 
the  books,  we  find  no  case,  in  which  it  has  been  decided,  that  a  plain  and 
acknowledged  mistake  in  law,  is  beyond  the  reach  of  equity."  We  have 
here,  then,  the  high  authority  of  this  most  distinguished  man,  and 
eminent  judge,  that  a  party  acting  under  a  clear  and  unequivocal  mistake 
of  his  legal  rights,  is  entitled  to  relief  in  a  court  of  equitable  jurisdic- 
tion ;  and  that  the  doctrine  of  a  court  of  chancery  is  not,  as  has  been 
contended,  that  equity  will  not  administer  relief  upon  that  ground,  upon 
the  principle  that  every  man  is  bound  to  know  the  law.  It  is  not  in- 
tended to  say,  that  the  plea  of  ignorantin  juris  would  in  all  instances  be 
available  in  civil  oases,  (in  criminal  it  never  can  be,)  because  some  legal 
propositions  are  so  plain  and  familiar,  even  to  ordinary  minds,  that  it 
would  be  doing  violence  to  probability  to  impute  ignorance  in  such  cases ; 
but  it  is  only  meant  to  sa^',  that  where  the  legal  principle  is  confessedly 


CHAP,  v.]  GILLESPIE  V.  MOON  '437 

doubtful,  and  one  about  which  ifjcnorance  may  well  be  supposed  to 
exist,  a  person  acting  under  a  misapprehension  of  the  law  in  such  a 
case,  shall  not  forfeit  any  of  his  legal  rights,  by  reason  of  such  mis- 
take. So  Newland,  in  his  treatise  on  contracts,  says,  that  mistake  or 
misapprehension  of  the  law,  is  a  ground  of  relief  in  equity;  as  if  a  man 
purchases  his  own  estate,  and  pays  for  it,  the  court  will  order  the  pur- 
chase money  to  be  refunded,  on  the  ground  that  there  was  a  plain  mis- 
take. It  appears  then,  from  what  has  been  observed  in  the  foregoing 
opinion,  that  some  of  the  most  enlightened  and  celebrated  men,  whose 
characters  are  recorded  in  judicial  history,  have  given  the  sanction  of 
their  illustrious  names  to  the  doctrine,  that  no  man,  acting  under  a  plain 
and  acknowledged  mistake  of  his  legal  rights,  shall  forfeit  those  rights, 
in  consequence  of  such  misapprehension.  The  authorities  in  support  of 
this  princijile,  might  be  multiplied  to  an  almost  indefinite  extent,  but  it  is 
deemed  unnecessary  further  to  enlarge  upon  the  subject.  It  is  the 
opinion  of  this  court,  that  the  decree  of  the  court  below  be  affirmed, 
with  costs  to  the  appellees.'  Decree  affirmed. 


GILLESPIE  V.  MOON. 

In  the  Court  of  Chancery  of  New  York^  before  Chancellor  Kent, 

1817. 

[2  Johnson's  Chancery  585.] 

The  Chancellor.  The  bill  is  brought  to  rectify  a  mistake  in  the  con- 
veyance to  the  defendant,  which,  by  an  error  in  the  description  of  the 
land,  conveyed  the  whole  lot,  or  250  acres,  instead  of  200  acres,  parcel  of 
the  same.  The  mistake  is  positively  denied  in  the  answer;  and  it  is 
objected,  that  patrol  proof  of  the  mistake  is  inadmissible,  in  opposition 
to  the  plain  language  of  the  deed,  and  especially,  in  opposition  to  the 
defendant's  answer. 

1.  Assuming  the  parol  testimony  to  be  competent,  the  fact  of  the  mis- 
take, on  the  part  of  the  grantor,  is  made  out  to  my  entire  satisfaction. 
There  are  circumstances,  independent  of  the  parol  proof,  that  afford 
pretty  strong  presumptive  evidence  of  mistake.  The  deed  to  Mrs.  Mann, 
in  1799,  after  mentioning  the  number  and  describing  the  boundaries 
of  the  lot,  adds,  that  it  contains  250  acres,  more  or  less.  The  defendant 
lived  on  part  of  the  lot,  and  other  tenants  occupied  other  parts  of  it,  at  the 

Tor  a  vahiable  case  commenting  upon  and  approving  the  doctrine  of  the 
principal  case  see  Ciunberland  Coal  &  Iron  Co.  v.  Sherman  et  al.,  1863,  20 
Md.  117.  See  also  Kearney  v.  Sascer,  1872,  37  Md.  264;  Carpenter  v.  Jones, 
1876,  44  Md.   625.  ^ 


438  GILLESPIE  v.  MOON  [part  i. 

time  of  the  purchase  by  the  defendant,  and  the  number  of  acres  was  a 
fact  likely  to  be  known  by  the  several  persons  interested  in  the  lot. 
It  is  not  pretended  in  the  case,  that  the  lot  did  not  contain  250  acres, 
and  when  the  defendant  applied  to  purchase,  it  is  extremely  probable 
that  he  and  Mrs.  Mann  equally  well  knew  so  important  and  so  notorious 
a  fact,  as  the  number  of  actual  or  reputed  acres.  But  the  agreement 
for  the  purchase,  signed  by  both  of  them,  on  the  day  of  the  date  of  the 
deed,  stated  that  Mrs.  Mann  had  agreed  to  convey  to  the  defendant, 
a  tract  of  land  containing  200  acres;  and  the  deed  itself,  which  follows, 
in  the  description  of  the  boundaries,  the  words  of  the  former  deed  to  Mrs. 
Mann,  adds  containing  200  acres,  more  or  less.  Why  did  it  vary,  in  this 
particular,  from  the  former  deed,  and  not  follow  the  description 
throughout?  This  was  a  circumstance  which  would  probably  attract 
attention,  as  soon  as  the  other  parts  of  the  description.  A  purchaser 
being  on  the  lot,  and  well  acquainted  with  it,  would  ordinarily  attach 
much  importance  to  a  declaration  of  the  quantity  of  acres.  If  the  whole 
lot  was  intended  to  have  been  sold,  it  is  inconceivable  why  that  part  of 
the  description,  in  the  former  deed,  should  have  been  varied  in  so  great 
a  degree,  as  from  250  to  200  acres,  and  why  the  previous  agreement, 
in  writing,  should  speak  of  a  tract  of  land  of  200  acres,  instead  of  the  lot 
itself,  well  known  to  contain  250  acres. 

The  two  receipts  for  rents,  dated  the  8th  and  9th  of  June,  1804,  do 
not  appear  to  me  to  afford  much  inference,  one  way  or  the  other.  The 
first  receipt  was  for  the  payment  of  the  arrears  due  from  the  defendant 
for  his  100  acres,  and  the  second  for  arrears*  from  the  other  occupants. 
It  says,  in  full  for  rent  for  lot  57,  occupied  hy  defendant.  This  was 
a  loose,  and  very  inaccurate  expression,  and  it  is  difficult  to  know  what 
was  meant.    These  receipts  appear  to  me  to  be  of  no  moment  in  the  case. 

But  if  we  resort  to  the  parol  proof,  it  is  clear  and  overwhelming, 
when  connected  with  the  inference  from  the  documents,  that  Mrs.  Mann 
did  not  intend  to  sell,  and  that  the  defendant  did  not  intend  to  buy,  more 
than  200  acres,  and  that  the  50  acres  occupied  by  Cable  were  not  in- 
cluded in  the  bargain. 

Elizabeth  Crossby  was  present  when  the  parties  were  making  the 
contract,  and  she  remembers  that  Mrs.  Mann  was  positive  and  absolute 
in  her  refusal  to  sell  more  than  200  acres,  or  to  sell  the  part  occupied 
by  Cable,  and  that  she  assigned  as  a  reason,  that  Cable  held  the  land 
under  lease.  We  have  also  the  testimony  of  several  witnesses  residing  near 
the  land,  and  who  had  been  long  and  well  acquainted  with  the  lot  and 
with  the  defendant,  who  testify  to  the  great  value  of  Cable's  part  in  1804, 
and  to  the  confession  of  the  defendant,  after  his  return  from  making 
the  purchase  at  New  York,  that  he  purchased  200  acres  only,  and  did 
not  purchase  Cable's  part  of  50  acres,  hut  that  he  found,  afterwards,  that 
his  deed  included  the  whole  lot.  The  witnesses,  who  testify  to  these 
confessions  and  declarations  of  the  defendant,  are  Josiah  Corbet,  Jona- 
than Wood,  David    Brown,   Caleb  Brown,   Daniel   Case,   and   Jonathan 


CHAP,  v.]  GILLESPIE  v.  MOON  439 

Cable.  These  six  witnesses  are  all  unimpeached ;  most  of  them  are 
neighbors  to  the  defendant,  and  strangers  to  the  plaintiifs,  and  it  is  im- 
possible not  to  give  full  credit  to  such  a  mass  of  testimony  all  going  to 
one  point.  In  addition  to  this,  we  have  the  testimony  of  David  Austin, 
who  was  in  New  York,  with  the  defendant,  in  June,  1804,  and  he  under- 
stood from  him,  at  the  time,  that  his  business  was  to  purchase  200 
acres  of  the  lot.  It  is  also  proved  by  Cable,  that  the  defendant  told  him, 
a  short  time  before  the  purchase,  that  he  was  going  to  purchase  200  acres 
of  the  lot. 

Some  of  these  witnesses  falsify  the  answer  in  other  parts,  and  prove 
it  untrue  as  to  a  matter  of  fact  within  the  defendant's  own  knowledge. 
The  answer  says,  that  immediately  on  receiving  the  deed,  the  possession 
of  the  whole  lot  was  delivered  to  him  by  the  tenants,  all  of  whom  either 
surrendered  their  possession  to  him,  or  took  deeds  under  him,  and 
that  he  offered  deeds  to  all  the  tenants,  and  particularly  to  Jonathan 
Cable,  who  refused  a  deed,  and  voluntarily  surrendered  his  possession  to 
the  defendant.  Cable  not  only  contradicts  the  fact  of  any  such  offer  to, 
or  surrender  by  him,  but  it  is  proved,  by  Charles  and  John  Blowers,  that 
the  defendant  entered  forcibly,  and  took  possession  of  the  mill  belonging 
to  Cable. 

.2.  It  is  unnecessary  to  enter  more  minutely  into  the  parol  proof  of  the 
act  of  the  mistake.  On  that  point  there  is  no  room  for  doubt.  The  only 
doubt  with  me  is,  whether  the  defendant  was  not  conscious  of  the  error  in 
the  deed,  at  the  time  he  received  it  and  executed  the  mortgage,  and 
whether  the  deed  was  not  accepted  by  him  in  fraud,  or  with  a  voluntary 
suppression  of  the  truth.  That  fraudulent  views  very  early  rose  in  his 
mind,  is  abundantly  proved.  He  asked  Corbet  (a  witness)  if  he  could  not 
so  run  the  line  as  to  save  the  lower  mill-seat  to  himself;  and  he  told 
David  Brown  that  he  meant  to  take  counsel,  and  if  he  found  he  could 
hold  the  whole  lot,  he  intended  to  do  so,  as  it  was  not  his  fault  that  the 
deed  was  made  as  it  was. 

It  would  be  a  great  defect  in  what  Lord  Eldon  terms  the  moral  juris- 
diction of  the  Court,  if  there  was  no  relief  for  such  a  case.  Suppose 
Mrs.  Mann  had  applied  for  relief,  instantly,  on  discovery  of  the  mistake, 
and  immediately  after  the  delivery  of  the  deed;  was  there  no  power 
in  the  whole  administration  of  justice  competent  to  help  her?  It  has 
been  the  constant  language  of  the  Courts  of  equity,  that  parties  can 
have  relief  in  a  contract  founded  in  mistake,  as  well  as  in  fraud.  The 
rule  in  the  Courts  of  law  is,  that  the  written  instrument  does,  in  con- 
templation of  law,  contain  the  true  agreement  of  the  parties,  and  that 
the  writing  furnishes  better  evidence  of  the  sense  of  the  parties,  than 
any  that  can  be  supplied  by  parol.  But  equity  has  a  broader  jurisdiction, 
and  will  open  the  written  contract  to  let  in  an  equity  arising  from  facts 
perfectly  distinct  from  the  sense  and  construction  of  the  instrument 
itself.  "It  must  be  an  essential  ingredient,"  says  Lord  Thurlow  (1  Bro. 
350)  "to  any  relief  under  this  head,  that  it  should  be  on  an  accident  per- 


440  GILLESPIE  v.  MOON  [part  i. 

fectly  distinct  from  the  sense  of  the  instrument."  I  have  looked  into 
most,  if  not  all,  of  the  cases  on  this  branch  of  equity  jurisdiction,  and  it 
appears  to  me  to  be  established,  and  on  great  and  essential  grounds  of 
justice,  that  relief  can  be  had  against  any  deed  or  contract,  in  writing, 
founded  in  mistake  or  fraud.  The  mistake  may  be  shown  by  parol  proof, 
and  the  relief  granted  to  the  injured  party,  whether  he  sets  up  the 
mistake  affirmatively,  by  bill,  or  as  a  defence. 

In  Henkle  v.  The  Royal  Exchange  Assurance  Company,  1  Vesey,  317, 
Lord  Chancellor  Hardwicke  said,  the  Court  had  jurisdiction  to  relieve, 
in  respect  of  a  plain  mistake  in  contracts  in  writing,  as  well  as  against 
frauds  in  contracts.  The  same  doctrine  appears  to  have  been  held 
by  him  in  Simpson  v.  Vaughan,  and  in  Langley  v.  Brown,  2  Atk.  31,  203, 
and  by  Lord  Thurlow  in  Taylor  v.  Eadd,  cited  in  3  Bro.  454;  5  Vesey, 
595.  So,  again,  in  Baker  v.  Paine,  1  Vesey,  456,  Lord  Hardwicke  ob- 
served, "How  can  a  mistake  in  an  agreement  be  proved  but  by  parol 
evidence?  It  is  not  read  to  contradict  the  face  of  the  instrument,  but 
to  prove  a  mistake  therein."  In  Irnham  v.  Child,  1  Bro.  94,  Lord 
Thurlow  said,  that  a  mistake  creating  an  equity  dehors  the  deed,  should 
be  proved  as  much  to  the  satisfaction  of  the  Court,  as  if  it  were  admitted ; 
and,  afterwards,  in  Shelburne  v.  Inchiquin,  1  Bro.  341,  344,  he  held  that 
parol  proof  was  not  incompetent  to  prove  that  words  taken  down  in 
writing  were,  by  mistake,  contrary  to  the  concurrent  testimony  of  all 
parties.  Lastly,  it  was  said  by  Lord  Eldon,  in  the  case  of  The  Marquis 
of  Townsend  v.  Stangroom,  6  Vesey,  328,  that  it  would  be  very  singular, 
if  the  jurisdiction  of  the  Court  should  not  be  capable  of  being  applied 
to  cases  of  mistake  and  surprise,  as  well  as  of  fraud.  He  owned  that 
those  who  undertook  to  rectify  an  agi-eement,  by  showing  a  mistake, 
undertook  a  task  of  great  difficulty,  but  he  could  not  say  the  evidence 
was  incompetent,  though  it  was  not  possible  to  reconcile  all  the  cases  on 
this  question. 

The  cases  concur  in  the  strictness  and  difficulty  of  the  proof,  but  still 
they  all  admit  it  to  be  competent,  and  the  only  question  is,  Does  it 
satisfy  the  mind  of  the  Court?  Lord  Hardwicke  said,  it  must  be  proper 
proof,  and  the  strongest  proof  possible ;  and  Lord  Thurlow^  that  it  must 
be  strong,  irrefragable  proof;  and,  he  said,  the  difficulty  of  the  proof 
was  so  great,  that  there  was  no  instance  of  its  prevailing  against  a 
party  insisting  that  there  is  no  mistake.  We  are  now  considering  the 
question  of  competency,  and  not  of  the  amount  of  the  parol  proof,  and 
it  appears  to  be  the  steady  language  of  the  English  chancery,  for  the 
last  seventy  years,  and  of  all  the  compilers  of  the  doctrines  of  that  Court, 
that  a  party  may  be  admitted  to  show,  by  parol  proof,  a  mistalce,  as  well 
as  fraud,  in  the  execution  of  a  deed  or  other  writing. 

We  will  next  look  into  the  cases  for  the  application  of  this  principle. 

On  bills  for  a  specific  performance  of  an  agreement  in  writing,  the 
defendant  has  frequently  been  admittod  to  show,  by  parol  proof,  a  mistake 
in  such  agreement,  and  by  that  means,  to  destroy  the  equity  of  the  bill. 


CHAP,  v.]  GILLESPIE  v.  MOON  441 

The  relief  on  such  bills  is  said  to  rest  in  discretion,  and  if  the  de- 
fendant can  show  surprise  or  mistake,  it  makes  the  special  performTinco 
of  such  an  agreement  unjust.  The  cases  of  Joynes  v.  Statham,  3  Atk. 
388 ;  the  Marquis  of  Townsend  v.  Stangroom,  G  Vesey,  328 ;  Rambottom  v. 
Gordon,  1  Vesey  &  Beames,  165 ;  Clowes  v.  Higginson,  1  Vesey  &  Beames, 
524;  and  Flood  v.  Finlay,  2  Ball  &  Beatty,  9,  are  all  to  this  point.  But 
this  is  only  one  class  of  cases:  there  is  another  class  in  which  the  object 
of  the  parol  proof  is  to  correct  mistakes  in  bonds,  deeds  of  settlements, 
mortgages,  and,  generally,  in  all  contracts  and  agreements,  and  where 
the  proof  is  introduced  to  aid  the  plaintiff  in  his  bill,  as  well  as  to  aid 
the  defendant  in  his  defence. 

Whether  such  proof  be  admissible  on  the  part  of  a  plaintiff  who  seeks 
specific  performance  of  an  agreement  in  writing,  and  at  the  same  time 
seeks  to  vary  it  by  parol  proof,  has  been  made  a  question.  Lord  Hard- 
wiCKE,  in  Joynes  v.  Statham,  seemed  to  think  it  might  be  done ;  but  such 
proof  was  rejected  by  the  master  of  the  rolls,  in  Woollam  v.  Hearn,  7 
Vesey,  211.  and  again  in  Higginson  v.  Clowes,  15  Vesey,  516,  and  when 
Lord  Redesdale  said,  in  Clinan  v.  Cooke,  1  Schoales  &  Lefroy,  39,  that  he 
could  find  no  decision  in  which  a  plaintiff  had  been  permitted  to  show 
an  omission  in  a  written  agreement,  by  mistake  or  fraud,  he  must  be 
understood  to  refer  to  the  cases  of  bills  for  a  specific  performance  of  an 
agreement,  which  was  the  case  then  before  him.  There  are  numerous 
instances  in  which  the  plaintiff  has  claimed  and  obtained  relief,  by 
showing  a  mistake  in  the  agreement ;  and  there  would  be  a  most  deplora- 
ble failure  of  justice,  if  the  mistakes  could  only  be  shown  and  corrected 
when  set  up  by  a  defendant  to  rebut  an  equity. 

In  Henkle  v.  The  Royal  Exchange  Assurance  Company,  the  bill  was 
brought  by  the  plaintiff  to  have  a  policy  rectified,  so  as  to  charge  the  de- 
fendants after  a  loss,  and  when,  without  such  correction,  they  would 
not  be  charged.  The  parol  proof  was  admitted,  and  because  the  proof 
was  insufficient  and  uncertain,  the  bill  was  dismissed,  though  without 
costs.  In  Baker  v.  Paine,  the  plaintiff  sought,  by  bill,  to  be  relieved 
from  a  mistake  in  articles  of  agreement,  containing  a  bargain  and  sale 
of  goods,  and  the  parol  proof  was  admitted,  thoiigh  objected  to,  and 
the  articles  were  rectified.  Again,  in  Watts  v.  Bullas,  1  P.  Wms.  60,  a 
voluntary  defective  conveyance  of  land  was  made  good,  on  a  bill  by  a 
person  holding  under  it,  against  the  heir  of  the  grantor ;  and  in  Simpson 
V.  Vaughan,  2  Atk.  31,  and  Crosby  r.  Middleton,  Prec.  in  Ch.  309,  and 
Burn  V.  Burn,  3  Vesey,  573,  a  mistake  in  a  bond  was  shown  by  parol 
proof,  on  the  part  of  the  plaintiffs,  and  the  bond  amended,  though  in  two 
of  these  cases  the  obligor  was  dead,  and  in  the  third,  the  lapse  of  time  had 
been  very  great,  and  the  party,  against  whom  the  correction  was  allowed, 
was  a  surety.  So,  in  The  South  Sea  Company  v.  D'Oliffe  (cited  in 
2  Veset',  377,  and  5  Vesey,  601)  there  was  a  mistake  in  a  bond,  given  by 
way  of  security,  by  inserting  six  instead  of  two  months,  and  the  party 
was  relieved,  upon  evidence  of  mere  verbal  communications. 


442  GILLESPIE  v.  MOON  [part  i. 

The  cases  of  Randal  v.  Randal,  2  P.  Wms.  4G4;  of  Cocking  v.  Pratt, 
1  Vesey,  400;  of  Rogers  v.  Earl,  Dickens,  294;  and  of  Barstow  v.  Kil- 
vington,  5  Vesey,  593,  were  bills  filed  to  rectify  mistakes  in  settlements; 
in  all  of  them  proof  aliunde  was  admitted,  though  the  admission  was 
resisted ;  and,  in  two  of  the  cases,  by  the  defendant,  who  claimed  as  heir 
against  the  mistake. 

Defects  in  mortgages,  contrary  to  the  intention  of  the  parties,  have 
also  been  made  good  against  subsequent  judgment  creditors,  who 
came  in  under  the  party,  who  was  bound  in  conscience  to  correct 
the  mistake.  2  Vern.  565,  609;  1  Eq.  Cas.  Abr.  320,  pi.  1;  1  P. 
Wms.  279. 

It  has  been  said,  that  there  was  no  instance  of  a  mistake  corrected  in 
favor  of  a  plaintiif,  against  the  answer  of  defendant,  denying  the  fact 
of  mistake.  But  I  do  not  understand  any  of  the  dicta  on  this  point  to 
mean,  that  the  answer,  denying  the  mistake  shuts  out  the  parol  proof, 
and  renders  relief  unattainable,  however  strong  that  proof  may  be. 
The  observations  of  Lord  Eldon,  in  the  case  of  The  Marquis  of  Town- 
send  V.  Stangroom,  certainly  imply  no  more,  than  that  the  answer  is 
entitled  to  weight,  in  opposition  to  the  parol  proof;  but  it  certainly  can 
be  overcome  by  such  proof.  In  that  very  case,  the  answer  denied  tlie 
mistake,  yet  parol  proof  was  held  admissible.  The  lord  chancellor 
only  said,  that  the  evidence  must  be  taken  with  due  regard  heing  had  to 
the  answer,  and  that  it  must  not  be  forgotten,  to  what  extent  the  answer 
of  one  of  the  parties  admits  or  denies  the  intention.  Lord  Thurlow  said, 
that  there  was  so  much  difficulty  in  establishing  the  mistake,  to  the 
entire  satisfaction  of  the  Court,  that  it  had  never  prevailed  against 
the  answer  denying  the  mistake.  I  am  not  inclined,  on  light  grounds, 
to  contradict  such  high  authority,  but,  as  I  read  the  case  of  Pitcairn  v. 
Ogbourne,  2  Vesey,  375,  before  Sir  John  Strange,  the  bill  was  to  be 
relieved  against  an  annuity  bond,  and  to  reduce  the  sum  of  1501.  to  lOOZ., 
according  to  the  original  understanding  and  agreement  of  the  parties. 
The  answer  denied  positively  all  the  circumstances,  and  every  particular 
of  the  private  agreement,  and  parol  proof,  by  several  witnesses,  was 
objected  to  and  admitted,  which  falsified  the  answer,  and  made  out  the 
real  agreement  to  the  satisfaction  of  the  Court,  and  though  relief  was 
not  granted,  it  was  refused  upon  other  and  distinct  grounds  no  ways 
connected  with  the  question,  as  to  the  competency  and  effect  of  the 
proof. 

It  is  the  settled  law  of  this  Court,  as  was  shown  in  the  case  of  Boyd  v. 
McLean,  1  Johns.  Ch.  Rep.  582,  that  a  resulting  trust  may  be  estab- 
lished by  parol  proof,  in  opposition  to  the  deed,  and  in  opposition  to 
the  answer  denying  the  trust.  There  is  no  reason  why  the  answer 
should  have  greater  effect  in  this  than  in  that  case,  and  there  would  be 
muiiifest  inconsistency  in  the  doctrines  of  the  Court,  if  such  a  distinc- 
tion existed.  The  case  of  Marks  v.  Poll,  1  Johns.  Ch.  Rep.  5S-9,  which 
was  referred  to  by  the  defendant's  counsel,  admitted,  that  parol  proof 


CHAP,  v.]  GILLESPIE  v.  MOON  443 

of  mistakes  was  competent ;  and  it  was  held  not  to  be  sufficient,  in  that 
case,  because  it  consisted  of  naked  confessions  of  a  party,  made  seven- 
teen years  after  peaceable  possession,  under  a  deed.  The  confessions, 
in  that  case,  were  also  of  a  negative  kind,  and  deduced  from  tacit 
acquiescence :  the  party  who  made  them  was  dead,  and  the  possession  had 
been,  for  thirty  years,  under  the  deed,  and  there  were  no  corroborating 
circumstances  in  aid  of  the  confessions.  Surely  there  is  nothing  to  bo 
drawn  from  that  case,  in  opposition  to  the  competency  of  the  jn'oof  in 
this. 

We  have  a  strong  case  on  this  subject,  in  Washburn  v.  Merrills,  which 
was  decided  on  the  equity  side  of  the  Supreme  Court  of  Connecticut, 
in  1801.  1  Day's  Cas.  in  Error,  139.  A  mortgagor,  in  that  case,  made, 
by  mistake,  in  1784,  an  absolute  deed,  which  he  did  not  discover  luitil 
some  time  after.  The  mortgagee  got  into  possession,  and,  in  March, 
1801,  sold  to  a  purchaser,  by  a  deed  with  covenant  of  warranty.  In 
August,  1801,  a  purchaser  under  the  mortgagor  filed  his  bill,  or  petition, 
against  the  purchaser  under  the  mortgagee,  to  redeem.  The  answer  set 
up  the  statute  of  frauds  as  a  defence ;  and,  on  the  trial,  parol  proof  of  the 
mistake  was  offei'ed  by  the  plaintifp,  objected  to  and  admitted,  and  the 
deed  established  as  a  mortgage,  and  a  right  of  redemption  decreed.  This 
decree  was  afterwards  unanimously  confirmed  in  the  Court  of  Errors  of 
that  state. 

My  opinion,  accordingly,  is,  that  the  parol  proof,  in  this  case,  was 
competent  and  admissible,  and  that  it  establishes,  most  clearly  and  con- 
clusively, the  fact  of  the  mistake,  as  charged  in  the  bill. 

I  am,  also,  of  opinion,  that  there  is  no  acquiescence  here  to  bar  the 
plaintiffs.  Mrs.  Mann  was  but  a  trustee  for  one  of  the  plaintiffs,  then  an 
infant ;  and  it  is  in  proof,  that  when  she  discovered  the  mistake,  she 
communicated  the  fact,  as  early  as  1806,  to  Joseph  Harris,  who  called 
upon  her,  as  agent  for  the  defendant,  when  she  told  him  of  her  intention 
to  commence  a  suit  in  this  Court.  She  died  in  1814,  and  the  present  suit, 
by  the  cestui  que  trust,  was  commenced  with  all  due  diligence.  There 
is  no  pretext  for  the  suggestion  of  any  delay,  or  acquiescence,  injurious 
to  the  just  rights  of  the  plaintiffs.  Courts  have  been  liberal  on  this  head. 
A  mistake  was  rectified,  after  seven  years'  acquiescence,  in  East  v. 
Thornbury,  3  P.  Wms.  126,  and  if  Lord  Hardwicke  refused  it  in 
Bell  V.  Cundall,  Amb.  101,  it  was  after  a  lapse  of  forty-four  years,  and 
where  there  was  a  purchaser  without  notice. 

Nor  has  the  defendant  any  equitable  claim  for  compensation  for  his 
improvements  made  upon  those  fifty  acres.  They  were  made  by  him 
after  he  knew  of  the  mistake,  and  had  declared  his  intention  to  take 
advantage  of  it,  and  fraudulently  carried  that  intention  into  effect. 
Such  an  allowance  would  be  confounding  all  moral  distinctions, 
and  be  giving  countenance  and  sanction  to  the  most  flagrant  in- 
justice. 

I  shall,  therefore,  decree,  that  the  defendant  release  and  convey  to  the 


444  WIIEELEK  v.  SMITH  [part  i. 

plaintiffs,  with  proper  covenants  against  his  own  acts,  the  fifty  acres 
leased  to  Jonathan  Cable,  and  possessed  by  him,  and  that  he  pay  the  costs 
of  the  suit.  Decree  accordingly/ 


WHEELER  V.  SMITH. 

In  the  Supreme  Court  of  the  United  States,  1850. 

[9  Howard  55.] 

The  complainant  executed  a  release  to  the  executors  of  his  uncle's  will 
induced  thereto  by  the  executors,  who  assured  him  that  the  bequest  to 
trustees  for  the  city  of  Alexandria,  in  Virginia,  was  a  valid  bequest; 
whereas,  the  bequest  was  void  for  vagueness  and  uncertainty.  Upon  dis- 
covering that  the  bequest  was  void,  and  that  he,  as  heir  at  law,  was 
entitled  to  his  uncle's  estate,  the  complainant,  Wheeler,  filed  his  bill 
praying  that  the  release  be  set  aside  as  inoperative  and  void. 
Mr.  Justice  McLean  delivered  the  opinion  of  the  court.^ 
It  appears  from  the  bill,  that  the  complainant  resides  in  the  State  of 
Pennsylvania,  and  that  so  soon  as  he  could  raise  the  means  of  paying 
his  expenses,  after  he  heard  of  the  death  of  his  uncle,  he  came  to  Alexan- 
dria.    He  had  an  interview  with  the  executors,  and  stated  to  them  his 

^In  Snell  v.  Insurance  Co.,  1878,  U.  S.  95,  89,  Mr.  Justice  Harlan  said 
for  a  unanimous  Court:    " 

"That  a  court  of  equity  can  afford  relief  in  such  a  case,  is,  we  think,  well 
settled  by  the  authorities.  In  Simpson  v.  Vaughan,  12  Atk.  33,  Lord 
Hardwicke  said  that  mistake  was  'a  head  of  equity  on  which  the  court 
always  relieves.'  In  Henkle  v.  Royal  Exchange,  1  Ves.  Sen.  318,  the  bill 
sought  to  reform  a  written  policy  after  loss  had  actually  happened,  upon  the 
ground  that  it  did  not  express  the  intent  of  the  contracting  parties.  The 
same  eminent  judge  said:  'No  doubt  but  this  court  has  jurisdiction  to  relieve 
in  respect  of  a  plain  mistake  in  contract,  so  that  if  reduced  to  writing  con- 
trary to  the  intent  of  the  parties,  on  proper  proof  would  be  rectified.'  In 
Gillespie  v.  Moon,  2  Johns.  (N.  Y.)  Ch.  585,  Chancellor  Kent  examined 
the  question  both  upon  principle  and  authority,  and  said:  'I  have  looked  into 
most,  if  not  all.  of  tlic  casos  in  this  branch  of  equity  jurisdiction,  and  it 
appears  to  me  established,  and  on  great  and  essential  gi-ounds  of  justice,  that 
relief  can  be  had  against  any  deed  or  contract  in  writing  founded  in  mistake 
or  fraud.  The  mistake  may  be  shown  by  parol  proof  and  the  relief  granted 
to  the  injured  party,  whether  he  sets  up  the  mistake  affirmatively  by  bill, 
or  as  a  defence.'  In  the  same  ease  he  said:  'It  appears  to  be  the  stead  lan- 
guages fif  the  English  Chancery  for  the  last  seventy  years,  and  of  all  the  com- 
pilers of  the  doctrines  of  that  court,  that  a  party  may  be  admitted  to  show, 
V)y  parol  proof,  a  mistake,  as  well  as  fraud,  in  the  execution  of  a  deed  or 
other  writing.'     .\nd  such  is  the  settled  law  of  this  court." 

'.\  jtiirt  <if  the  oj)inion  is  omitted. 


CHAP,  v.]  WHEELER  v.  SMITH  445 

determination  to  test  the  validity  of  the  will,  so  soon  as  he  should  be  able 
to  employ  counsel.  This  was  before  the  probate  of  the  will.  Mr.  Smith, 
one  of  the  executors,  expressing  great  kindness  for  him,  was  anxious  to 
avoid  a  lawsuit.  He  did  not  fear  the  result,  as  the  executors  had  been 
advised  by  counsel  in  whom  they  had  confidence,  that  the  will  was  valid. 
He  represented  the  vexations,  delays,  and  expenses  of  a  lawsuit,  and  in- 
timated to  the  complainant  that  the  executors  were  willing  to  pay  a  sum 
of  money  to  him  if  the  matter  could  be  compromised. 

It  appears  that  the  complainant  had  been  prodigal  in  his  expenditures, 
and  that,  notwithstanding  the  provisions  for  his  support  which  had  been 
made  for  him  by  his  uncle,  he  was  without  means  and  embarrassed. 
When  the  interview  took  place  which  led  to  the  compromise,  the  com- 
plainant again  expressed  his  conviction  that  the  will  was  not  valid,  and 
declared  that  he  should  try  its  validity  by  legal  proceedings.  Mr.  Tay- 
lor, one  of  the  executors,  was  a  distinguished  lawyer,  a  man  of  high 
standing,  and  in  whom  the  complainant  reposed  the  greatest  confidence; 
he  represented  to  the  complainant  that  he  had  sundry  written  opinions 
of  counsel  in  favor  of  the  legal  validity  of  the  residuary  devise,  which  he 
offered  to  show  to  him.  His  conversation  conveyed  to  the  complainant 
"  the  clear  and  distinct  impression,  that  there  was  but  one  opinion  among 
the  lawyers  consulted,  and  that  they  were  unanimous  in  favor  of  the 
validity  of  the  devise."  The  complainant  asked  Mr.  Taylor  to  state  his 
opinion  on  the  subject.  He  observed,  that  the  complainant  should  not 
have  asked  him,  but  his  opinion  was,  "  that  the  devise  in  question  was  a 
legal  and  valid  disposition  of  the  residue  of  the  estate."  At  the  same 
time,  he  admitted  that  in  Pennsylvania  such  a  devise  would  not  be  good; 
hut  that  it  was  good  under  the  old  law  of  Virginia. 

The  complainant  alleges  that  he  had  no  settled  views  of  the  legal  ques- 
tion, and  being  disheartened  by  the  circumstances  under  which  he  was 
placed,  he  yielded  to  the  compromise.  He  had  but  little  time  for  reflec- 
tion, and  being  disheartened  by  the  circumstances  under  which  he  was 
elusion  to  consider  the  devise  valid,  and  take  what  he  could  get  for  a 
release. 

Under  these  circumstances,  the  complainant  agreed  to  the  compromise. 
It  stated  the  residuary  devise,  and  that  its  validity  had  been  controverted 
by  the  complainant.  That  "  the  said  executors,  taking  on  themselves  the 
burden  of  the  execution  of  said  will,  and  of  the  trusts  aforesaid,  and  the 
said  William  Wheeler,  to  avoid  the  delay  and  expense  of  litigation,  and 
finally  to  settle  and  adjust  all  doubts  and  diiliculties  which  might  arise 
on  the  effect  of  the  said  will,  so  as  to  leave  the  said  executors  to  execute 
the  same  without  delay  or  impediment,  have  agreed  on  the  following 
terms  of  compromise." 

1st.  That  twenty-five  thousand  dollars  shall  be  paid  to  the  complain- 
ant. 2d.  That  the  executors  shall  release  to  him  all  claims  to  any 
property,  real  or  personal,  conveyed  or  settled  on  complainant  by  the 
testator  in  his  lifetime.     3d.     That  the  complainant  shall  release  to  the 


446  WHEELER   v.    SMITH  [part  u 

executors  "  all  his  claims,  in  law  or  equity,  to  the  estate,  real  and  per- 
sonal, devised  and  bequeathed,  by  the  said  Charles  Bennett  by  his  said 
will,  to  be  held  and  disposed  of  by  the  said  executors  in  the  manner  in 
and  by  the  said  will  prescribed.  And  that  the  said  executors  shall  be  at 
liberty,  if  any  specification  of  the  objects  to  which  the  residuary  fund 
is  to  be  applied  be  thought  necessary,  to  apply  the  same  to  aid  in  finish- 
ing the  Alexandria  Canal,  &c.,  and  to  subscribe  to  any  railroad  or  other 
roads  communicating  with  the  said  town;  to  any  or  to  all  of  the  above 
purposes,  in  such  way  as  the  said  executors,  or  the  survivors,  may  think 
most  conducive  to  the  prosperity  and  welfare  of  the  town,"  &c. 

The  complainant,  it  seems,  had  studied  law,  but  it  is  manifest  from 
the  facts  before  us,  that  he  was  but  little  acquainted  with  business,  was 
an  inefficient  and  dependent  man,  easily  misled,  especially  by  those  for 
whose  abilities  and  characters  he  entertained  a  profound  respect.  From 
the  high  character  of  the  executors,  no  one  can  impute  to  them  any 
fraudulent  intent  in  this  transaction.  Looking  to  what  they  considered 
to  be  the  object  of  the  testator,  they  felt  themselves  authorized,  if  not 
bound,  to  effectuate  his  purposes  by  making  this  compromise  with  his 
heir  at  law.  They  had  no  personal  interest  beyond  that  which  was  com- 
mon to  the  citizens  of  Alexandria.  And  we  admit  that  they  may  have 
acted  under  a  sense  of  duty,  from  a  misconception  of  their  power  under 
the  will. 

But  in  making  the  compromise,  the  parties  did  not  stand  on  equal 
ground.  The  necessities  and  character  of  the  complainant  were  well 
known  to  the  executors.  LTaving  the  confidence  expressed  in  the  validity 
of  the  devise,  they  could  hardly  have  felt  themselves  authorized  to  pay  to 
the  complainant  twenty-five  thousand  dollars  for  the  relinquishment  of 
a  pretended  right.  Nor  could  they  have  deemed  it  necessary,  in  the 
agreement  of  compromise,  substantially  to  constitute  him  the  donor 
of  the  munificent  bequest  to  the  town  and  trade  of  Alexandria. 

We  are  to  judge  of  this  compromise  by  what  is  stated  in  the  bill,  the 
facts  being  admitted  by  the  demurrer.  And  it  appears  to  us  that  the 
agreement,  under  the  circumstances,  is  void.  It  cannot  be  sustained  on 
principles  which  lie  at  the  foundation  of  a  valid  contract.  The  influences 
operating  upon  the  mind  of  the  complainant  induced  him  to  sacrifice  his 
interests.  He  did  not  act  freely,  and  with  a  proper  understanding  of  his 
rights. 

The  decree  of  the  Circuit  Court  is  reversed,  the  demurrer  overruled, 
and  the  cause  remanded  for  further  proceedings. 


CHAP,  v.]         ANDREWS  v.   ANDREWS  447 

ANDREWS  V.   ANDREWS. 

In  the  Supreme  Judicial  Court  of  Maine,  1889. 

[81  Maine  337.] 

On  report.  Bill  in  equity,  heard  on  bill,  answer  and  proofs.  The  bill 
was  brought  to  reform  a  deed  of  real  estate,  given  by  the  plaintiff  to  the 
defendant,  October  14,  1884;  the  plaintiff  claiming  that  a  certain  quarry, 
and  three  small  lots  of  land  were  included  in  the  description  in  the  deed 
under  a  mutual  mistake,  and  that  they  should  have  been  excepted  there- 
from.   The  facts  are  fully  stated  in  the  opinion. 

Virgin,  J.^  The  plaintiff  seeks  to  reforna  her  warranty  deed  to  the 
defendant,  upon  the  ground  that  its  metes  and  bounds  include  not  only 
her  homestead  farm  which  alone  she  sold  and  intended  to  convey,  but 
also,  by  reason  of  a  misapprehension  of  its  true  boundaries,  three  other 
small  adjoining  parcels  of  land  together  with  a  granite  ledge,  all  of 
which  prior  to  1867  were  a  part  of  the  original  farm  but  were  severally 
sold  and  conveyed  to  various  grantees  by  the  original  owner, — one  of  the 
plaintiff's  early  predecessors  in  title. 

The  office  of  a  description  of  the  land  in  a  deed  of  conveyance  is  to 
furnish  and  perpetuate  the  means  of  identifying  the  premises  conveyed. 
And  if  the  language  is  precisely  what  the  parties  intended  it  to  be  when 
they  adopted  it,  nevertheless,  if  back  of  that  they  through  ignorance  or 
misapprehension  mistakenly  believed  that  it  correctly  delineated  the 
actual  boundaries  of  the  premises  intended  to  be  conveyed,  the  mistake 
is  one  of  fact  and  not  of  law.  Burr  v.  Hutchinson,  61  Maine,  514;  Bush 
V.  Hicks,  60  N.  Y.  298 ;  Baker  v.  Pyeatt,  6  W.  R.  283. 

To  sustain  her  bill  under  the  equity  head  of  mistake,  with  no  allega- 
tion of  fraudulent  or  other  inequitable  conduct  on  the  part  of  the 
defendant,  the  plaintiff  must  prove  that  the  deed  not  only  misdescribes 
the  real  estate  which  she  sold  and  intended  to  convey,  but  also  that  which 
the  defendant  understood  he  purchased, — that  the  mistake  was  mutual. 
Butman  V.  Hussey,  30  Maine,  263 ;  Burr  v.  Hutchinson,  supra ;  National 
Trad.  Bank  v.  Ocean  Ins.  Co.,  62  Maine,  519.  In  other  words,  that  when 
the  deed  was  executed,  both  parties  understood  it  to  convey  the  identical 
land  which  the  bill  alleges  it  ought  and  would  have  conveyed,  had  not  the 
alleged  mistake  occurred;  and  that  the  reformation,  in  some  at  least  of 
the  particulars  alleged,  is  necessary  in  order  that  the  deed  may  correctly 
speak  the  actual  intention  of  both  parties  and  thereby  perfect  and  per- 
petuate their  real  agreement  which  the  deed  in  its  present  form  fails 
to  express.  Lumbert  v.  Hill,  41  Maine.  475 ;  Adams  v.  Stevens,  49 
Maine,  362;  Young  v.  McGowan,  62  Maine,  56;  Andrews  v.  Essex  Ins. 

^Only  so  much  of  the  opinion  of  the  learned  judge  is  given  as  deals  with 
the  question  of  refor>nation. 


448  ANDREWS  v.  ANDREWS  [part  i. 

Co.,  3  Mason,  373;  Kilmer  v.  Smith,  77  N.  Y.  226,  232;  German  & 
Am.  Ins.  Co.  V.  Davis,  131  Mass.  317.  For  if  the  plaintiff  only  was  mis- 
taken, a  reformation  obviating  her  mistake  would  only  result  in  the 
inequitable  consequence  of  shifting  from  the  plaintiff  to  the  defendant 
the  burden  of  abiding  by  a  contract  which  he  never  made.  Hence  if  the 
parties  differently  understood  the  original  agreement  as  to  the  identity 
of  the  premises,  the  relief  would  take  on  the  form  of  cancellation  rather 
than  reformation.    Young  v.  McGowan,  62  Maine,  56,  61.' 

^The  learned  judge  found  the  mistake  to  be  mutual  and  accordingly  de- 
creed reformation  as  prayed. 

'"An  action  to  reform  a  written  agreement  rests  upon  the  theory  that  the 
parties  came  to  an  understanding,  but  in  reducing  it  to  writing,  through 
mutual  mistake,  or  through  mistake  on  one  side  and  fraud  on  the  other, 
omitted  some  provision  agreed  upon,  or  inserted  one  not  agreed  upon. 
The  object  of  such  an  action  is  to  so  change  the  instrument,  as  written, 
as  to  conform  it  to  the  agreement,  as  made,  by  inserting  the  provision 
omitted,  or  striking  out  the  one  inserted  by  mutual  mistake.  In  the  ab- 
sence of  fraud  nothing  can  be  put  in  or  taken  out  by  the  court,  unless  it 
was  the  intention  of  both  parties  that  it  should  go  in  or  be  left  out  when 
the  agreement  was  written.  The  sole  office  of  such  an  action  'is  to  cor- 
rect mistakes  by  writing  out  the  contract  according  to  the  actual  agree- 
ment.' Thomas  v.  Harmon,  122  N.  Y.  84,  89.  Equity  will  not  make 
a  new  agreement  for  the  parties,  nor,  under  color  of  reforming  one  made 
by  them,  add  a  provision  which  they  never  agreed  upon  and  did  not  want 
when  the  contract  was  written,  'although  it  may  afterward  appear  very 
expedient  or  proper  that  it  should  have  been  incorporated.'  When  the 
Avriting  expresses  the  actual  agieement  it  cannot  be  reformed  and  a  stip- 
ulation, not  assented  to,  can  never  be  added.  Nevius  v.  Dunlap,  33  N.  Y. 
676;  Bryce  v.  Lorillard  Fire  Ins.  Co.,  55  N.  Y.  240,  242;  Paine  v. 
Jones,  75  N.  Y.  593;  Born  v.  Schrenkeisen,  110  N.  Y.  55;  Albany  City 
Savings  Institution  v.  Burdick,  87  N.  Y.  40;  Paine  v.  Upton,  87  N.  Y. 
327:  Pitcher  v.  Hennessey,  48  N.  Y.  415;  Many  v.  Beekman  Iron  Co., 
9  Paige  188,  195;  Snell  v.  Ins.  Co.,  98  U.  S.  85;  Story's  Equity  Jur. 
§  408;  Pomeroy's  Eq.  Jur.  §§  855,  870,  1370.  The  remedy  of  reformation 
for  mistake  should  not  be  confounded  with  that  of  recission  for  fraud. 
No  fraud  is  claimed  in  this  action,  and  the  mere  fact  that  an  instrument 
'ought  not  to  be  enforced  is  insufficient,  standing  alone,  to  justify  a 
resort  to  equity.'  Beach  on  Eq.  Jur.  §§  540,  552.  'Mistake,'  said 
Mr.  Pollock,  'does  not  of  itself  affect  the  validity  of  contracts  at  all. 
But  mistake  may  be  such  as  to  prevent  any  real  agreement  from  being 
formed,  in  which  case  the  agreement  is  void;  or  mistake  may  occur  in 
the  expression  of  a  real  agreement,  in  which  case,  subject  to  rules  of  evi- 
dence, the  mistake  can  be  rectified.'  Pollock  on  Contracts,  392.  "A 
mistake  on  one  side  may  be  a  ground  for  rescinding  a  contract,  or  for  re- 
fusing to  enforce  its  specific  provisions,  but  it  cannot  be  a  gi-ound  for 
altering  its  terms.'  Adams  Equity,  171."  Curtis  v.  Albee,  1901,  107  N.  Y. 
.•500,    304. 


CHAP,  v.]  IIAERIS  V.  PEPPERELL  449 

HARRIS  V.  PEPPERELL. 

In  Chancery,  before  Lord  Romh.i.y,  M.  R.,  1867. 

\^Laio  Reports,   5   Equity   1.] 

This  was  a  suit  by  a  vendor  to  rectify  a  conveyance  on  account  of  a 
mistake  in  the  quantity  of  land  therein  comprised. 

Lord  Romilly,  M.  R.  The  first  defence  set  up  by  the  Defendant  is 
that,  in  cases  of  mistake  arising  in  deeds,  the  Court  will  not  interfere  to 
rectify  the  error  unless  it  is  clearly  proved  to  have  been  common  to  both 
parties,  and  in  support  of  this  view  the  case  of  Earl  of  Bradford  v.  Earl 
of  Romney,  30  Beav.  431,  which  was  a  decision  of  mine,  was  cited. 
Against  this  another  decision  of  mine,  in  Garrard  v.  Frankel,  30  Beav. 
445,  was  cited  on  behalf  of  the  PlaintifP,  where  a  lease  was  executed  re- 
serving a  rent  of  a  much  less  amount  than  was  intended,  and  the  Court 
interfered  to  relieve  the  lessor.  These  decisions  may  seem  at  first  sight 
inconsistent,  but  they  both  appear  to  have  been  acquiesced  in,  and  were 
not  appealed  from,  and  they  are,  in  my  opinion,  easily  reconcilable,  and 
both  correct. 

Where,  as  in  the  case  of  Earl  of  Bradford  v.  Earl  of  Romney,  there  has 
been  a  settlement  on  marriage,  and  the  marriage  has  taken  place,  and 
children  have  been  born,  then,  if  the  Court  is  called  upon  to  rectify  the 
instrument  on  the  ground  of  mistake,  it  is  necessary  for  the  Court  to 
see  whether  it  is  carrying  into  effect  the  contract  which  was  intended 
to  be  entered  into  on  both  sides,  for  it  is  impossible  to  undo  the  marriage, 
or  to  remit  the  parties  to  the  same  position  that  they  were  in  before.  In 
such  cases,  therefore,  the  Court  acts  with  great  caution  in  granting 
relief,  and  requires  i^roof  of  the  exact  contract  which  both  parties  in- 
tended to  enter  into. 

.  But  the  same  rule  does  not  apply  in  cases  arising  between  vendors  and 
purchasers  (using  these  words  in  their  widest  sense).  In  such  cases, 
where  a  deed  is  not  actually  executed,  the  Court  will  not  enforce  specific 
performance  of  a  contract  which  one  party  has  entered  into  under  a  mis- 
take, and  where,  as  in  Garrard  v.  Frankel,  30  Beav.  445,  a  person  sup- 
poses that  he  has  entered  into  a  contract  for  a  lease  at  one  rent,  and 
then  it  turns  out  that  the  rent  specified  is  of  a  different  amount,  then, 
as  it  is  in  the  power  of  the  Court  to  put  the  parties  in  the  same 
position  as  if  the  contract  had  not  been  executed,  the  Court  will  interfere, 
provided  the  party  aggrieved  comes  speedily  for  redress. 

In  the  present  case  it  is  clear  that  the  Court  can  put  the  parties  in  the 
same  position  as  before  the  conveyance  was  executed,  for  if  I  hold  that 
there  has  been  a  mistake,  and  that  the  deed  ought  to  be  rectified,  then  T 
can  give  the  Defendant  the  option  of  having  the  whole  contract  annulled, 
or  else  of  taking  it  in  the  form  which  the  Plaintiff  intended.     It  is. 


450  WEENER  v.  RAWSON  [part  i. 

therefore,  a  ease  where  the  Court  can  grant  relief,  and  I  am  of  opinion 
that  the  mistake  was  clearly  proved.  [His  Lordship  then  stated  the 
result  of  the  evidence  on  this  point.] 

The  deed,  with  this  error  in  the  parcels,  was  executed  by  the  Plaintiff 
without  any  examination,  and  he  did  not  discover  it  till  he  was  on  the 
point  of  selling  the  plot  to  which  the  piece  of  land  in  question  was  sup- 
posed to  belong,  when  he  discovered  that  it  was  already  included  in  the 
conveyance  to  the  Defendant. 

With  regard  to  costs  in  such  cases,  they  must  depend  on  the  conduct 
of  the  parties.  When  the  mistake  is  entirely  owing  to  the  conduct  of 
the  Plaintiff,  then  he  must  pay  all  the  costs  of  the  suit.  When  the  De- 
fendant has  been  aware  of  the  mistake  from  the  beginning,  and  refused 
to  rectify  it,  then  the  costs  must  be  given  against  him.  In  the  present 
case  it  is  clear  that  the  Defendant,  if  not  aware  of  the  mistake  at  the 
time  of  the  execution  of  the  deed,  knew  it  as  soon  as  the  Plaintiff  told 
him.  On  the  other  hand,  the  negligence  on  the  part  of  the  Plaintiff  is 
inconceivable,  for  he  allowed  this  additional  piece  of  land  to  be  in  the 
plan,  and  never  caused  it  to  be  examined  to  see  whether  it  was  correct. 
It  is  a  case  of  gross  negligence  on  his  part,  and  therefore  no  costs  can  be 
given  on  either  side. 

There  will  be  a  declaration  that  the  Plaintiff  did  not  intend  to  convey 
the  additional  strip  of  land  in  question,  and  is  entitled  to  have  the  con- 
veyance rectified  accordingly,  with  an  option  to  the  Defendant  to  annul 
the  contract. 


WERNER  V.  RAWSON. 

In  the  Supreme  Court  of  Georgia,  1892. 
[89   Georgia   619.] 

Action  by  Mrs.  Werner  against  Rawson,  to  recover  possession  of  cer- 
tain real  estate,  and  for  the  restoration  of  a  deed  (by  the  establishment 
of  a  copy  or  by  requiring  the  execution  of  one  similar)  which  Rawson 
had  executed  and  which  conveyed  to  her  the  property  in  question.  The 
defendant  pleaded  that  the  deed  was  executd  as  the  result  of  a  mistake 
or  misunderstanding  between  himself  and  the  plaintiff's  brother,  Simon, 
who  negotiated  with  him  in  the  purchase  and  sale  of  the  property;  and 
hence  he  prayed  that  the  deed  be  rescinded  and  set  aside.  By  amendment 
hf  ;illeged  that  Simon  by  design  had  the  deed  so  prepared  as  to  convey 
lh(!  property  in  question,  embracing  two  houses  and  lots,  for  the  con- 
sideration named  by  the  defendant  in  the  negotiation  as  the  price  of  one 
of  them,  so  as  to  entrap  him  into  signing  the  same.  The  jury  found  for 
the  defendant,  and  that  the  contract  be  rescinded.  To  the  overruling  of 
her  motion  for  a  new  trial  the  plaintiff  excepted. 

I3lkcki,ky,  Chief  Justice. 


CHAP,  v.]  WERNER  I'.  RAWSON  451 

The  action  was  brought  by  Mrs.  Werner  to  recover  the  land  and  to 
establish  a  copy  of  tlio  deed  of  conveyance  which  Rawson,  the  defendant, 
had  executed  to  her  and  afterwards  destroyed.  The  controlling  legal 
question  arises  upon  the  eciuitable  relief  ptrayed  for  by  Rawson  in  his 
answer,  to  wit :  that  the  deed  of  conveyance  be  cancelled  and  set  aside 
on  the  ground  of  mistake.  The  mistake,  if  any,  was  not  alone  in  the 
deed,  but  in  the  contract  itself,  and  consisted  primarily  of  a  difference  of 
opinion  or  understanding  as  to  the  price  at  which  the  property  was  to  be 
sold  and  conveyed  by  the  defendant,  Rawson,  to  the  plaintiff,  Mrs. 
Werner,  the  vendor  understanding  the  price  to  be  $5,000.00,  and  the  pur- 
chaser (who  contracted  by  her  agent,  Mr.  Simon)  understanding  it  to  be 
$2,500.00.  Both  the  consideration  expressed  in  the  deed  and  the  amount 
of  the  check  delivered  in  payment  of  the  purchase  money  conformed  to 
the  understanding  of  the  purchaser,  so  that  relatively  to  these  documents, 
the  mistake  was  not  mutual,  but  only  unilateral.  Relatively  to  the  con- 
tract itself,  the  mistake  was  mutual  in  so  far  as  mutuality  consists  of 
mutual  misapprehension ;  for  the  vendor  had  one  understanding  of  the 
price  supposed  to  be  agreed  upon,  and  the  purchaser  another.  But  the 
case  may  be  dealt  with  as  one  of  mistake  on  the  part  of  the  vendor  alone, 
which  mistake,  looking  to  the  whole  scope  of  it,  consisted,  first,  in  an 
honest  belief  that  he  had  named  $5,000.00  as  the  price  of  the  property, 
and  that  the  purchaser  had  agreed  to  pay  it;  secondly,  in  a  like  belief 
that  such  was  the  amount  for  which  the  check  he  received  in  payment 
was  drawn,  when  in  fact  that  amount  was  only  $2,500,00. 

1.  There  is  a  plain  distinction  between  reforming  a  writing  and  can- 
celling it.  Unquestionably  it  is  true  that  to  enable  a  court  to  reform  an 
agreement  evidenced  by  writing  on  the  ground  of  mistake,  it  must  af- 
firmatively appear  that  the  mistake  was  common  to  both  parties,  and  that 
the  writing  as  executed  expresses  the  contract  as  understood  by  neither. 
The  reason  for  the  rule  is  forcibly  stated  by  Ames,  C.  J.,  in  Diman  v. 
Railroad  Co.,  5  R.  I.  134,  who  says :  "  A  court  of  equity  has  no  power 
to  alter  or  reform  an  agreement  made  between  parties,  since  this  would 
be  in  truth  a  power  to  contract  for  them ;  but  merely  to  correct  the  writ- 
ing executed  as  evidence  of  the  agreement,  so  as  to  make  it  express  what 
the  parties  actually  agreed  to.  It  follows,  that  the  mistake  which  it  may 
correct  in  such  a  writing  must  be,  as  it  is  usually  expressed,  the  mistake 
of  both  parties  to  it;  that  is,  such  a  mistake  in  the  draughting  of  the 
writing  as  makes  it  convey  the  intent  or  meaning  of  neither  party  to  the 
contract.  If  the  court  were  to  reform  the  writing  to  make  it  accord  with 
the  intent  of  one  party  only  to  the  agreement,  who  averred  and  proved 
that  he  signed  it  as  it  was  written  by  mistake,  when  it  exactly  expressed 
the  agreement  as  understood  by  the  other  party,  the  writing,  when  so 
altered,  vrould  be  just  as  far  from  expressing  the  agreement  of  the  parties 
as  it  was  before;  and  the  court  would  have  been  engaged  in  the  singular 
office,  for  a  court  of  equity,  of  doing  right  to  one  party  at  the  expense 
of  a  precisely  equ^l  wrong  to  the  other." 


452  WERNER  v.  RAWSON  [part  i. 

"  Equity  will  not  reform,  a  written  contract  unless  the  mistake  is 
proved  to  be  the  mistake  of  both  parties,  but  may  rescind  and  cancel  a 
contract  upon  the  ground  of  a  mistake  of  facts  material  to  the  contract 
of  one  party  only."  15  Am.  &  Eng.  Enc.  of  Law,  647.  The  mistake 
"  must  be  mutual  if  the  complainant  wishes  to  have  the  instrument 
reformed  and  not  simply  set  aside,  because  equity  cannot  undertake  to 
reform  on  the  ground  of  the  ignorance  or  misapprehension  of  one  of  the 
parties  as  to  any  facts,  though  it  may  rescind."  Bispham's  Prin.  of  Eq., 
4th  ed.,  §  191.  So,  "  Cancellation  is  appropriate  when  there  is  an 
apparently  valid  written  agreement  or  transaction  embodied  in  writing, 
while  in  fact,  by  reason  of  a  mistake  of  both  or  one  of  the  parties,  either 
no  agreement  at  all  has  really  been  made,  since  the  minds  of  both  parties 
have  failed  to  meet  upon  the  same  matters,  or  else  the  agreement  or 
transaction  is  different,  with  respect  to  its  subject-matter  or  terms,  from 
that  which  was  intended."  2  Pom.  Eq.  Jur.,  2d  ed.,  §  870.  "  A  mis- 
take on  one  side  may  be  a  ground  for  rescinding  a  contract,  or  for  re- 
fusing to  enforce  its  specific  performance ;  but  it  cannot  be  a  ground  for 
altering  its  terms."  Adams  Eq.  *171.  And  see  Douglas  v.  Grant,  12  111. 
App.  273 ;  Dulany  v.  Rogers,  50  Md.  524 ;  Diman  v.  Railroad  Co.,  supra. 
Our  code,  §  3124,  expressly  declares :  "  A  distinction  exists  between  re- 
forming a  contract  and  executing  a  contract  in  case  of  mistake.  To 
authorize  the  former,  the  court  must  be  satisfied  by  the  evidence  that  the 
mistake  was  mutual ;  but  the  court  may  refuse  to  act  in  the  latter  case,  if 
the  mistake  is  confined  to  the  party  refusing  to  execute."  The  next  sec- 
tion provides  that,  "  In  all  cases  of  a  mistake  of  fact  material  to  the  con- 
tract, or  other  matter  affected  by  it,  if  the  party  complaining  applies 
within  a  reasonable  time,  equity  will  relieve."  Another  section,  2636,  de- 
clares: "  Mistake  of  a  material  fact  may,  in  some  cases,  justify  a  rescis- 
sion of  the  contract."  For  some  of  the  circumstances  under  which  the 
courts  have  thought  the  complaining  party  entitled  to  relief,  refer  to 
Brown  V.  Lamphear,  35  Vt.  252,  where  it  appeared  that  plaintiff  unin- 
tentionally omitted  from  a  deed  conveying  land  to  defendant  a  reserva- 
tion of  the  right  to  use  water  from  a  certain  spring;  Paget  v.  Marshall, 
L.  R.  28  Ch.  Div.  255,  where  plaintiff,  in  executing  a  lease  of  certain 
buildings,  included  therein  by  mistake  a  warehouse  he  had  intended  to  re- 
serve for  his  own  use,  which  he  had  refused  to  rent,  but  which  defendant 
(■hiiin<;d  to  be  included  in  the  offer  he  had  accepted;  Harris  v.  Pepperell, 
L.  R.  5  Efj.  1,  where  tlic  plaintiff  included  in  a  deed  to  defendant  a  piece 
of  land  not  intended  to  be  so  conveyed;  also,  the  similar  case  of  Baxen- 
dale  V.  Scale,  19  Beav.  601.  In  Webster  v.  Cecil,  30  Beav.  62, 
it  appeared  tliat  defendant,  by  letter,  offered  to  sell  certain  property 
to  7)laintiff  for  1250?.,  and  the  plaintiff,  by  letter,  accepted  the 
ofTcr.  The  defendant  had,  by  mistake,  inserted  in  his  letter  1250/. 
instead  of  2250Z.,  and  he  immediately  gave  notice  of  the  error.  The 
court  refused  to  enforce  the  contract.  See,  also,  Burkhalter  v.  Jones, 
.'52    K:in.   5. 


CHAP,  v.]  WEKNER  V.  RAWSON  453 

In  view  of  the  authorities  above  cited,  we  do  not  think  the  contention 
of  the  plaintiff  in  error  can  be  maintained/ 

'  Balance  of  opinion  dealing  with  instructions  to  jury  omitted. 

Not  only  does  equity  rescind  and  decree  cancellation,  but  if  the  instrument 
has  been  cancelled  by  mistake,  equity  restores  it.  In  Skip  v.  Huey,  1744, 
3  Atk.  91,  93,  Lord  Habdwicke  said: 

"There  are  many  cases  where  equity  will  set  up  debts  extinguished  at  law 
against  a  surety,  as  well  as  against  a  principal ;  as  where  a  bond  is  burnt  or 
cancelled  by  mistake,  and  much  stronger,  if  a  principal  procure  the  bond  to 
be  delivered  up  by  fraud,  in  such  a  case  the  court  would  certainly  set  it  up, 
because  he  shall  not  avail  himself  of  the  fraud  of  any  of  the  debtors." 

In  Langley  v.  Brown,  1741,  2  Atk.  195,  203,  the  same  great  Chancellor 
said:  "The  third  ground  of  relief  is,  mistakes  and  misapprehensions  in  the 
drawer  of  deeds  contrary  to  the  design  of  the  parties. 

"And  to  be  sure  this  is  as  much  a  head  of  relief  as  fraud  and  imposition." 

In  Hearne  v.  Marine  Ins.  Co.,  1874,  20  Wall.  488,  490,  Mr.  Justice  Swayne 
said  for  the  court: 

"The  reformation  of  written  contracts  for  fraud  or  mistake  is  an  ordinary 
head  of  equity  jurisdiction.  The  rules  which  govern  the  exercise  of  this 
power  are  founded  in  good  sense  and  are  well  settled.  Where  the  agreement 
as  reduced  to  writing  omits  or  contains  terms  or  stipulations  contrary  to  the 
common  intention  of  the  parties,  the  instrument  will  be  corrected  so  as  to 
make  it  conform  to  their  real  intent.  The  parties  will  be  placed  as  they 
would  have  stood  if  the  mistake  had  not  occurred;  Kerr  on  Fraud  and  Mis- 
take, 419,  420. 

"The  party  alleging  the  mistake  must  show  exactly  in  what  it  consists,  and 
the  correction  that  should  be  made.  The  evidence  must  be  such  as  to  leave 
no  reasonable  doubt  upon  the  mind  of  the  court  as  to  either  of  those  points. 
Beaumont  v.  Bradley,  1  Turner  &  Russell,  41-50;  Marquis  of  Breadalbane 
V.  Marquis  of  Chandos,  2  Mylne  &  Craig,  711;  Fowler  v.  Fowler,  4  De  Gex  & 
Jones,  255;  Sells  v.  Sells,  1  Drewry  &  Smales,  42;  Loyd  v.  Cocker,  19  Beavan, 
144.  The  mistake  must  be  mutual  and  common  to  both  parties  to  the  in- 
strument. It  must  appear  that  both  have  done  what  neither  intended.  Rooke 
V.  Lord  Kensington,  2  Kay  &  Jonson,  753;  Eaton  v.  Bennett,  34  Beavan,  196. 
A  mistake  on  one  side  may  be  a  ground  for  rescinding,  but  not  for  reforming, 
a  contract;  Mortimer  v.  Shortall,  2  Drury  &  Warren,  372;  Sells  v.  Sells, 
supra.  Where  the  mind  of  the  parties  have  not  met  there  is  no  contract,  and 
hence  none  to  be  rectified:  Bentley  i'.  McKay,  31  L.  J.  Chancery,  709;  Baldwin 
et  al.  V.  Mildeberger,  2  Hall,  176;  Coles  v.  Browne,  10  Paige,  534;  Calverley 
V.  Williams,  1  Vesey  Jr.,  211." 

Perhaps  there  is  no  neater  statement  of  the  reason  for  relief  than  in  the 
following  few  sentences.  "If  the  defendants'  representation  of  ownership 
related  to  the  four  lots,  it  was  a  falsehood  and  a  fraud.  If  it  related  to  the 
Bronx  river  lots,  it  was  not  so  understood  by  the  plaintiff,  and  he  was  mis- 
led by  a  mistake.  There  was  thus  either  fraud  or  mistake  against  which 
equity  may  relieve.  The  defendants'  mistake  was  that  they  conveyed  what  they 
did  not  owTi  and  did  not  mean  to  sell.  The  plaintiflF's  was  that  he  bought  what 
he  meant  to  buy,  but  without  the  asserted  title  in  his  grantors.  What  one 
meant  to  sell  t|ie  other  did  not  mean  to  buy,  and  what  one  meant  to  buy 


454  S.  &  P.  PENNY  v.  MAETIN  and  others  [part  i. 


S.  &  P.  PENNY  V.  MAETIN  and  others. 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1820. 

[4l  Johnson's  Chancery  506.] 

The  Chancellor.  The.  facts  in  this  case  are  few  and  simple.  The 
plaintiffs  sued  the  defendants,  E.  and  M.,  as  partners  in  assumpsit ,  at 
law,  and  M.  only  was  taken.  The  suit  was  carried  on,  under  the  pro- 
vision in  the  statute,  against  M.,  who  was  taken,  and  judgment  rendered 
against  both  E.  and  M.;  and  the  remedy  under  it  is  limited  by  the  statute 
to  an  execution  against  the  joint  property  of  both  the  defendants,  and  the 
separate  property  and  person  of  the  one  taken.  On  issuing  execution, 
it  was  found  that  there  was  no  joint  property,  and  that  M.,  the  defend- 
ant taken,  was  insolvent.  Since  that  time,  the  plaintiffs  have  discovered 
that  the  other  three  defendants  in  this  suit  were  partners  with  E.  and  M. 
in  the  contract  sued  at  law;  and  the  question  is,  whether,  upon  these 
facts,  the  plaintiffs  are  entitled  to  the  aid  of  this  Court,  to  recover  by 
its  decrees,  their  demand  against  the  dormant  partners. 

There  is  no  doubt  that  E.,  who  was  not  taken  in  the  suit  at  law,  can  be 
sued  upon  the  judgment  which  was  rendered  jointly  against  M.  and  E. 
This  was  settled  by  the  Supreme  Court  in  the  case  of  the  Bank  of  Col- 
umbia V.  Newcomb,  6  Johns.  Eeps.  98,  and  it  was  strongly  intimated 
in  that  case,  that  the  defendant  not  taken  in  the  original  suit,  would  be 
entitled  to  make  any  defence  which  he  might  have  made  in  his  distinct 
individual  capacity,  had  he  been  arrested  in  the  original  suit.  This  con- 
clusion can  work  no  prejudice  to  the  plaintiffs,  and  it  would  seem  to 
follow  from  the  plainest  principles  of  justice.  It  is  equally  certain  that 
the  present  defendants,  who  now  join  in  the  demurrer,  might  have  been 
sued  at  law  in  the  original  action.  The  demand  is  on  a  contract,  to 
which  it  is  alleged  they  were  parties,  as  being  dormant  partners  with  E. 
and  M.  The  omission  to  make  them  parties  in  the  action  at  law,  arose, 
according  to  the  allegation  in  the  bill,  from  ignorance  of  the  fact  that 
they  were  such  partners.  Is  that  ignorance  a  sufficient  ground  for 
transferring  to  this  Court,  jurisdiction  of  a  matter  properly,  if  not  ex- 
clusively, cognizable  at  law?  The  ignorance  might  have  been  removed 
by  due  vigilance  and  inquiry,  and  perhaps  by  the  assistance  of  a  bill  of 
discovery  here.  The  plaintiff's  have  no  particular  equity  entitling  them 
to  relief.  Ignorance,  as  Lord  TjonoHBOROUGn  said,  is  not  a  mistake.  They 
iu!ver  inriuirod  whether  E.  and  M.  had  secret  partners,  and  they  gave  the 
whole  credit,  to  them.      If  tlicy  have  now  got  into  embarrassment  and 

tlift  fither  (lid  not  inoan  to  sell."    Per  FiNcn,  J.,  in  (^rowc  cl  al.  v.  Lewin,  1884, 
95  N.  Y.  423,  42G. 


€iiAP.  v.]  C]TT:STEKFIELD  v.  JANSSEN  455 

difficulty,  in  respect  to  their  legal  remedy,  by  pursuing  t"he  ostensible 
partners  at  law,  without  such  inciuiry,  I  do  not  know  of  any  principle 
that  will  authorize  this  Court  to  take  jurisdiction  of  a  case  where  the 
remedy  was,  in  the  first  instance,  full  and  adequate  at  law,  because  the 
])arty  may  have  lost  that  remedy  by  ij^norance,  founded  on  neglif?ence, 
not  on  accident,  or  mistake,  or  on  any  misrepresentation  or  fraud.  Gen- 
t?rally  speaking,  a  jurisdiction  does  not  arise  here  from  the  mere  circum- 
stance that  a  party  has  omitted  to  make  a  proper  case  at  law.  There  is 
no  such  head  of  equity  jurisdiction.  The  general  rule  is,  that  if  the 
liarty  becomes  remediless  at  law  by  negligence,  he  shall  not  be  relieved 
in  equity.  ITe  must  show  that  he  has  been  deprived  of  his  legal  remedy 
by  accident,  casualty,  misfortune,  &c.    1  Fonb.  Tr.  b.  1  ch.  3.  sec.  3,  §  3. 

It  is  to  be  observed,  that  here  are  no  special  circumstances  disclosed  by 
the  bill.  We  have  only  the  naked  fact,  that  the  plaintiffs  discov- 
ered, since  the  judgment  at  law,  that  the  defendants  were  partners;  but 
whether  they  were  kept  in  ignorance  by  undue  means,  or  took  any  pre- 
vious steps  to  remove  it,  does  not  appear,  and  is  not,  therefore,  to  be 
]-)resumed.  Whether  they  have,  or  have  not,  lost  their  remedy  at  law, 
(and  on  which  I  give  no  opinion,)  the  demurrer  must  be  pronounced 
to  be  well  taken,  and  the  bill  dismissed,  without  costs. 

Decree  accordingly/ 


Section  3.    Fraud. 


This  court  can  certainly  relieve  against  all  kinds  and  species  of  fraud. 

Fraud  may  either  be  dolus  mains,  a  clear  and  express  fraud,  or  fraud 
may  arise  from  circumstances,  and  the  necessity  of  the  person  at  the 
time. 

There  are  also  hard  unconscionable  bargains,  which  have  been  con- 
strued fraudulent.  Barnardiston  v.  Lingwood,  post.  2  vol.  133.  Gwyne  v. 
Heaton,  1  Bro.  Cha.  Rep.  10.  Sed  vide  Willis  v.  Jernegan,  post.  2 
vol.  251,  and  there  are  instances  where  even  the  common  law  hath  re- 
lieved for  this  reason  expressly. 

James  v.  Morgan,  1  Lev.  Ill,  was  a  case  of  this  kind.  Assumpsit  to 
pay  for  a  horse,  a  barley  corn,  a  nail,  and  double  every  nail,  and  avers 
that  there  were  32  nails  in  the  shoes  of  the  horse,  which,  doubling  each 
nail,  comes  to  500  quarters  of  barley;  and  upon  non  assumpsit  pleaded, 
the  cause  being  tried  before  Mr.  Jvistice  Hide  at  Hereford;  he  directed 
the  jury  to  give  the  value  of  the  horse  in  damages,  being  81.  and  so  they 

^  The  learned  Chancellor  subsequently  quoted  as  authority  Willings  &  Fran- 
cis r.  Consequa,   1S16,   1  Peters'  C.  C.  301. 

So  in  Craft  v.  Dickens,  1875,  78  111.  131,  Equity  refused  to  reform  an 
attachment  bond  for  mistake,  as  the  bond  might  have  been  corrected  at  law. 


456  CHESTERFIELD  v.  JANSSEN  [part  i. 

did;  and  it  was  afterwards  moved  in  arrest  of  judgment  upon  a  slip  in  the 
declaration  which  was  overruled  and  judgment  given  for  the  plaintiff. 

But  this  court  will  relieve  against  presumptive  fraud,  so  that  equity 
goes  further  than  the  rule  of  law,  for  there  fraud  must  be  proved,  and  not 
presumed  only. 

To  take  an  advantage  of  another  man's  necessity,  is  equally  bad,  as 
taking  advantage  of  his  weakness,  and  in  such  situation,  as  incaijable  of 
making  the  right  use  of  his  reason,  as  in  the  other. 

In  the  marriage-brocage  bonds,  one  of  the  parties  to  the  marriage  only 
is  deceived  and  defrauded,  and  not  either  of  the  parties  to  the  marriage- 
brocage  bond,  and  yet  the  court  have  relieved,  for  they  hold  it  infected 
by  the  fraud,  and  relieve  for  the  sake  of  the  publiek,  as  a  general  mis- 
chief. 

In  like  manner,  where  a  debtor  enters  into  an  agreement  with  a  par- 
ticular creditor,  for  a  composition  of  10s.  in  the  pound,  provided  the  rest 
of  the  creditors  agree,  and  this  creditor  at  the  same  time  makes  a  private 
clandestine  agreement  for  his  whole  debt,  and  though  no  particular  fraud 
to  the  debtor,  yet  as  it  is  a  fraud  on  the  creditors  in  general,  who  entered 
into  the  agreement,  on  a  supposition  the  composition  would  be  equal  to 
them  all,  the  court  has  relieved.  Surrett  v.  Spiller,  ante  105.  2  Ves.  156. 
See  Middleton  v.  Onslow,  1  P.  W.  768. 

So  in  bargains  to  procure  offices,  neither  of  the  parties  is  defrauded  or 
unapprized  of  the  terms,  but  it  serves  to  introduce  unworthy  objects  into 
publiek  offices ;  and  therefore,  for  the  sake  of  the  publiek,  the  bargain  is 
rescinded. 

Political  arguments,  in  the  fullest  sense  of  the  word,  as  they  concern 
the  government  of  a  nation,  must,  and  have  always  been  of  great  weight 
in  the  consideration  of  this  court,  and  though  there  may  be  no  dolus 
malus,  in  contracts  as  to  other  persons,  yet  if  the  rest  of  mankind  are 
concerned  as  well  as  the  parties,  it  may  properly  be  said,  that  it  regards 
the  publiek  utility. 

In  the  cases  before  this  court,  there  have  been  sometimes  proof  of 
actual  fraud,  such  as  Berney  v.  Pitt,  the  Earl  of  Ardglass  v.  Muschamp, 
and  several  others. 

In  these  cases  too,  fraud  has  been  constantly  presumed,  or  inferred 
from  circumstances,  and  conditions  of  parties;  weakness  and  necessity 
on  one  side,  and  extortion  and  avarice  on  the  other,  and  merely  from  the 
intrinsic  unconscionableness  of  the  bargain. 

The  next  kind  of  deceit  is,  upon  other  persons  who  were  not  parties^ 
as  ancestor  and  father,  and  the  heir  and  expectant,  where  by  contrivance 
an  heir  or  a  son  have  been  kept  from  disclosing  his  affairs  to  a  father,  or 
other  relation,  and  by  that  means  prevented  from  being  set  right,  and 
undeceived;  and  the  ancestor  or  father,  have  likewise  been  sediiced  to 
leave  their  fortunes,  to  be  divided  among  a  set  of  dangerous  persons,  and 
common  adventurers. 

Per  Lord  TTardwk'ke  in  Chesterfield  v.  Janssen  (1750,)  1  Atkyns,  314, 

or.i    or'> 


CHAP,  v.]  THYNN  V.  THYNN  457 

THYNN  t'.  THYNN. 

In  Chancery,  before  Lord  Keeper  Guilford,  1684. 

[1  Vernon  296.] 

The  case  was,  that  Mr.  Thynii,  of  Eagham,  deceased,  having  made  a 
will,  and  thereby  made  his  wife  sole  executrix;  the  defendant  Mr.  Thynn 
the  son,  hearing  of  this  will,  came  to  his  mother  in  the  life-time  of  his 
father,  and  persuaded  her,  that  there  being  many  debts,  the  executorship 
Avould  be  troublesome  to  her;  and  desired  that  he  might  be  named  exe- 
cutor; for  that  he  by  reason  of  his  privilege  of  Parliament  could  struggle 
the  better  with  the  creditors,  and  persuaded  his  mother  to  move  his  father 
in  it;  declaring,  that  he  would  be  only  an  executor  in  trust  for  her:  and 
the  mother  accordingly  prevails  on  the  father  that  it  might  be  so:  and 
thereupon  Mr.  Thynn  the  son  gets  a  new  will  drawn,  whereby  a  legacy 
of  501.  only  is  given  to  his  mother,  and  therein  he  makes  himself  sole 
executor;  and  cancels  the  former  will,  though  the  father  opposed  the 
doing  thereof;  and  the  last  will  was  read  over  so  low,  that  the  testator 
could  not  hear  it ;  and  when  he  called  to  have  it  read  louder,  the  scrivener 
cried,  he  was  afraid  of  disturbing  his  worship.  The  defendant  having 
thus  made  himself  sole  executor,  and  procured  this  will  to  be  executed,^ 
where  only  a  legacy  of  501.  was  given  to  his  mother,  set  up  for  himself, 
and  denied  the  trust  for  his  mother:  and  in  his  first  two  answers  he 
denied  the  will  was  drawn  by  his  directions,  and  that  the  501.  therein, 
given  to  his  mother  was  without  the  testator's  privity;  but  in  his  third 
answer  he  confessed  it. 

Upon  the  whole  matter,  it  appearing  to  be,  as  well  a  fraud,  as  also  a 
trust,  the  Lord  Keeper,  notwithstanding  the  statute  of  frauds  and  per- 
juries, (The  statute  seems  to  relate  only  to  trusts  concerning  lands  and 
hereditaments,  vide  stat.  29  Car.  11.  cap.  3.  Vide  Devinish  v.  Baynes, 
Pre.  Ch.  3.  Selwyn  v.  Selwyn,  11  Dec.  1758,  before  Henley,  Lord  Keeper, 
L.  I.  Hall,)  though  no  trust  was  declared  in  writing,  decreed  it  for  the 
plaintiff,  and  ordered  that  the  defendant  should  be  examined  on  inter- 
rogatories for  discovery  of  the  estate.  The  defendant  was  to  pay  costs 
to  the  hearing,  to  be  taxed  by  the  Master  out  of  his  own  estate,  not  to 
wait  the  taking  the  account,  Keg.  Lib.  1684,  B.  fol.  259.' 

'  "Should  an  heir,  or  personal  representative,  whose  interests  would  b& 
affected  by  the  regular  insertion  of  a  bequest  in  a  will,  induce  the  testator  to 
omit  making  a  formal  provision  for  an  intended  object  of  his  bounty,  by 
assurances  that  the  testator's  wishes  shall  be  as  fully  executed  as  if  the  be- 
quest were  formally  made,  this  promise  and  vmdertaking  will  raise  a  trust, 
which,  though  not  available  at  law,  will  be  enforced  in  Equity  on  the  ground 
of  fraud.  Chamberlain  v.  Agar,  2  Ves.  &  Bea,  262;  ]Mestaer  v.  Gillespie.  11 
Ves.    638;    Strickland    v.    Aldridge,    1)   Ves.    519;    Chamberlaine    v.    Chamber- 


458  BAWDES  v.  AMHURST  [part  i. 


BAWDES  V.  AMHUEST. 
In  Chancery,  before  Lord  Chancellor  Cowper,  1715. 

[Precedents  in  Chancery  403.]' 

On  the  plaintiffs  application  in  way  of  marriage  to  his  new  wife,  the 
defendant's  sister,  her  father  proposed  to  give  her  a  portion  of  45001. 
and  the  plaintiff  proposed  to  settle  on  her,  by  way  of  jointure,  a  rent 
charge  of  4501.  per  ann.  and  in  order  thereunto,  the  plaintiff  and  the 
young  lady's  father  went  to  Mr.  Minshull's  chambers  in  the  Temple,  who 
was  to  draw  the  settlement,  as  counsel  for  the  lady,  and  Mr.  Minshull 
hearing  the  proposals  on  both  sides,  took  down  minutes  or  heads  thereof 
in  writing,  and  the  same  day  gave  them  to  his  clerk,  to  draw  articles 
according  to  the  substance  thereof:  the  next  day  the  young  lady's  father 
was  taken  ill  suddenly,  and  died  in  about  two  hours  after:  The  next 
morning  the  plaintiffs  intermarried,  and  now  brought  this  bill  to  compel 
a  specific  execution  of  the  marriage  agreement,  and  to  haw  the  portion 
paid.  The  defendant  pleaded  the  Statute  of  Frauds  and  Perjuries,  and 
on  arguing  that  plea,  the  benefit  thereof  was  saved  to  the  hearing. 

It  was  now  argued  by  Mr.  Cooper  and  Mr.  Vernon  for  the  plaintiffs, 
that  this  was  such  an  agreement  as  a  coiirt  of  equity  might  well  carry  into 
execution;  that  the  statute  did  not  require  all  agreements  to  be  signed 
hy  the  parties  themselves,  but  if  they  were  signed  by  any  one  lawfully 
authorized  thereto,  it  was  sufficient;  that  here  Mr.  Minshull  had  authority 
and  directions  from  both  parties  to  draw  the  articles;  that  he  took  down 
These  minutes  or  lieads  from  the  parties'  own  mouths ;  and  reduced  them 
into  writing;  and  that  therefore  this  could  not  be  looked  upon  as  a  parol 
Mgreeiijent,  or  any  danger  of  perjury,  since  there  was  a  writing  of  it,  nor 
( ould  there  be  any  variety  of  evidence  concerning  it ;  for  the  same  reason, 
that  in  the  case  of  Maseall  and  Cooke,  2  Vern.  200.  S.  C,  in  this  court, 
where  only  a  draught  of  a  marriage  settlement  was  prepared,  and  before 
it  was  ingrossed  the  parties  intermarried,  and  the  father  was  present, 
and  gave  the  wedding  dinner,  he  was  afterwards  decreed  to  pay  the  mar- 

laine  v.  f'hiiiiibfrlaino,  2  Froom.  34;  Oldliam  v.  Litchford,  2  Freem.  285.  And 
suc-li  an  ongagciiK'nt  may  be  entered  into,  not  only  by  words,  but  by  silent 
assent  to  siieli  a  proposed  undertaking,  which  will  equally  raise  a  trust. 
Bryn  r.  flodfrey.  4  Ves.  10;  Paine  r.  TIall,  IS  Ves.  475.  Of  coin-se,  the  case 
would  ti(-  still  s1i(iri;,'ci-  if  the  iiiseiiioii  of  Ihc  bequest  in  Ihe  will  liad  been 
prevented  by  any  violi'iil  interference.  i)ixon  v.  Olmiiis,  1  Cox,  414." 
Barrow  v.  Greenough,   17!H;,  .■?  Ves.   152    (note  Sumner's  edition). 

M  Eq.  abr.  21,  pi.  8.  S.  C.  2  Chan.  Rep.  284.  S.  C.  Gilb.  Chan.  238. 
Antfe,  208.  374.  380.  Post,  526.  530.  Vid.  Lord  Hardwicke's  observation 
iipnii   tliis  ease,  2  Atk.  504. — Ileportcr's  Note. 


CHAP,  v.]  BAWDES  V.  AMHUEST  459 

riage  portion,  tliough  the  agreement  was  never  signed  by  either  party; 
that  in  several  cases,  though  there  he  nothing  of  the  agreement  reduced 
into  writing,  yet  it  has  been  decreed  to  an  execution  in  this  court;  Ante, 
208.  304,  as  if  a  man,  by  his  answer,  confesses  the  agreement  as  charged 
in  the  bill,  he  cannot  avoid  it,  by  insisting  it  was  never  reduced  into 
writing,  because,  when  he  himself  confesses  it,  there  can  be  no  danger  of 
perjury  or  cantrariety  of  evidence;  no  more  can  there  be  in  this  case, 
when  there  is  a  writing  or  memorandum  of  the  substance. 

But  it  was  argued  on  the  other  side,  and  decreed  to  be  no  such  agree- 
ment as  this  court  could  carry  into  execution;  and  my  Lord  Chancellor 
said,  he  had  been  always  tender  in  laying  open  that  wise  and  just  pro- 
vision the  parliament  had  made;  that  the  act  had  not  only  directed  such 
agreements  to  be  in  writing,  as  if  that  alone  were  sufficient,  but  went 
further,  and  directed  them  to  be  signed  by  the  parties  themselves,  or. 
some  other  lawfully  authorized  by  them  for  that  purpose;  that  to  obviate 
the  pretence  of  such  an.d  such  cases  being  out  of  the  mischief  of  the 
statute,  the  parliament  had  in  general  words  comprehended  all,  and  di- 
rected that  all  agreements  should  be  in  writing,  and  signed  by  the 
party;  that  he  knew  no  case  where  an  agreement,  though  it  were  all 
written  with  the  party's  own  hand,  had  been  held  sufficient,  unless  it  had 
been  likewise  signed  by  the  party,  and  said,  that  the  party's  not  signing 
it  was  an  evidence  that  he  did  not  think  it  compleat;  that  he  had  left 
it  to  an  after  consideration,  and  might  afterwards  make  alterations  or 
additions  in  it ;  and  therefore,  unless  it  were  either  signed  by  him,  or 
something  equivalent  done,  to  shew  that  he  looked  uj^on  it  as  compleated 
and  perfected,  he  thought  such  writing  b\^  the  party  himself  was  not 
sufficient  to  bind  him  within  that  statute,  and  cited  the  case  of  Mallet 
and  Halfpenny,  1  Eq.  abr.  20,  pi.  6.  S.  C.  2  Vern.  373.  S.  C,  where  the 
defendant,  on  a  treaty  of  marriage  for  his  daughter  with  the  plaintiff, 
signed  a  writing,  comprising  the  terms  of  the  agreement,  and  afterwards 
designing  to  elude  the  force  thereof,  and  get  loose  from  his  agreement, 
ordered  his  daughter  to  put  on  a  good  humour,  and  get  the  plaintiff  to 
deliver  up  that  writing,  and  then  to  marry  him,  which  she  accordingly 
did,  and  the  defendant  stood  at  the  corner  of  a  street  to  see  them  go  to  be 
married,  and  afterwards  forced  the  plaintiff  to  bring  his  bill  in  this  court 
to  be  relieved;  and  my  Lord  Chancellor  said,  he  remembered  very  well, 
that  this  cause  was  heard  before  the  Master  of  the  Rolls,  and  the  plaintiff 
had  a  decree;  but  he  said,  this  was  on  the  point  of  fraud,  which  was 
proved  in  the  cause,  and  Halfpenny  walked  backwards  and  forwards  in 
the  court,  and  bid  the  Master  of  the  Rolls  observe  the  statute,  which  he 
humorously  said,  7  do,  I  do.  And  in  the  principal  case  it  was  decreed  to 
be  no  agreement,  which  this  court  could  carry  into  execution,  being  only 
preparatory  heads,  which  were  afterwards  to  be  drawn  into  form,  and 
might  then  receive  several  alterations  or  additions,  or  the  agreement  en- 
tirely broke  off,  upon  some  further  enquiry  or  information  of  the  parties' 
circumstances. 


460  BAWDES  v.  AMHUEST  [part  i. 

But  Note ;  It  seemed  to  be  agreed,  both  by  the  court  and  counsel,  that 
if  the  mariage  had  been  had  upon  the  foot  of  this  writing,  and  the  father 
had  been  privy  and  consenting  to  it,  that  he  should  afterwards  have  been, 
obliged  to  execute  his  part  thereof/ 

^In  Welford  v.  Beazley,  1747,  3  Atk.  503,  504,  Lord  Hardwicke  "denied 
the  general  doctrine  as  laid  down  in  Prec.  in  Chan.  402.  Bawdes  v.  Am- 
hurst,  though  true  as  applied  to  that  case  by  Lord  Cowper"  on  the  ground 
"that  the  writing  there,  though  in  the  father's  hand,  was  only  a  sketch  of 
an  agreement  not  settled  or  confirmed  by  the  parties." 

In  Wooldridge  v.  Scott,  1879,  60  Mo.  669,  073,  Sherwood,  C.J.,  said: 
"It  seems  to  be  thought  by  counsel  for  plaintiff  that  the  desired  feature 
capable  of  taking  this  case  out  of  the  ordinary  routine  is  furnished  by  what 
took  place  between  the  parties  in  the  presence  of  Mr.  Boyd.  It  is  to  the  last 
degree  doubtful  whether  the  language  itself  will  bear  the  construction  placed 
upon  it  by  counsel.  Mr.  Boyd  says:  'Both  parties  admitted  that  the  note 
due  from  Francis  M.  Wooldridge  was  given  for  a  tract  of  land  sold  by  Jane 
Chambers  to  Francis  M.  Wooldridge;  that  a  lien  was  to  be  held  on  the  land 
until  the  purchase-money  was  paid.'  The  admission  with  regard  to  the  lien 
would  apply  as  well  to  what  took  place  between  Jane  Chambers  and  her 
vendee,  as  to  what  occurred  between  the  latter  and  the  plaintiff.  But  con- 
ceding that  the  language  imports  all  that  plaintiff's  counsel  claims,  that  the 
vendee  was  to  give  a  lien  upon  the  land  until  the  purchase-money  was  paid, 
still  we  are  met  by  the  formidable  objection  presented  by  the  Statute  of 
Frauds.  Giving  the  language  this  very  favorable  construction,  it  is  quite 
evident  that  plaintiff  relied  on  the  word  of  the  vendee  to  make  him  secure 
in  accordance  with  what  had  been  promised.  If  the  vendee  had  made  this 
with  a  fraudulent  purpose  of  obtaining  an  advantage,  and  then  breaking 
faith  with  plaintiff,  we  might  be  disposed  to  afford  relief,  notwithstanding 
the  statute  'on  the  foot  of  the  fraud.'  Halfpenny  v.  Ballot,  2  Vernon  373. 
But  there  is  no  indication  in  this  record  of  a  fraudulent  purpose  on  the  part 
of  the  vendee,  and  unless  this  is  the  case  the  statute  forms  an  absolute  bar. 
Chambers  v.  Lecompte,  9  Mo.  566,  and  cases  cited;  2  Story  on  Contracts, 
§  1466,  and  cases  cited.  And  it  is  said  that  even  in  case  of  fraudulent  non- 
performance, where  a  writing  was  to  evidence  the  contract,  there  must  be  an 
express  promise  to  reduce  the  contract  to  writing,  and  not  a  mere  parol 
promise  to  do  the  act  agreed  on,  not  looking  to  such  reduction.  If,  as  above 
seen,  there  was  in  the  present  instance  neither  fraud  of  the  character  spoken 
of,  nor  any  contract  respecting  the  land  to  be  reduced  to  writing,  the  whole 
matter  thus  rested  in  parol  and  under  the  ban  of  the  statute." 


CHAP,  v.]       SIR  G.  MAXWELL  v.  LADY  MOUNTACUTE  461 

SIR  GEORGE  MAXWELL  v.  LADY  MOUNTACUTE,  his  wife. 

In  Chancery,  before  Lord  Chancellor  Parker,  1719. 

[Precedents  in  Chancery  526.]' 

In  this  case  a  distinction  was  taken,  and  agreed  by  the  court,  that 
"where,  on  a  treaty  for  a  marriage,  or  any  other  treaty,  the  parties  come  to 
an  agreement,  but  the  same  is  never  reduced  into  writing,  nor  any  pro- 
posal made  for  that  purpose,  so  that  they  rely  wholly  on  their  parol 
agreement,  that  unless  this  he  executed  in  part,  neither  party  can  compel 
the  other  to  a  specific  performance,  for  that  the  Statute  of  Frauds  is 
directly  in  their  way;  but  if  there  were  any  agreement  for  reducing  the 
same  into  writing,  and  that  is  prevented  by  the  fraud  and  practice  of 
the  other  party,  that  this  court  will  in  such  case  give  relief;  as  where 
instructions  are  given,  and  preparations  made  for  the  drawing  of  a  mar- 
riage settlement,  and  before  the  compleating  of  it  the  woman  is  drawn, 
by  the  assurances  and  promises  of  the  man,  to  perform  it,  and  after  to 
marry  him.     Ante,  370,  and  402.    2  Vern.  200,  and  372. 

So  where  a  man  treated  to  lend  money  on  a  mortgage,  and  the  con- 
veyance proposed  was  an  absolute  deed  from  the  mortgagor,  and  a  deed 
of  defeasance  from  the  mortgagee,  and  after  the  mortgagee  had  got  the 
conveyance  he  refused  to  execute  the  defeasance,  yet  my  Lord  Notting- 
ham decreed  it  against  him  on  the  fraud  after  the  statute.  2  Atk,  98. 
3  Atk.  388. 

So  where  an  absolute  conveyance  is  made  for  such  a  sum  of  money, 
and  the  person  to  whom  it  was  made,  instead  of  entering  and  receiving 
the  profits,  demands  interest  for  his  money,  and  has  it  paid  him,  this  will 
be  admitted  to  explain  the  nature  of  the  conveyance;  and  (2  Ventris,  361. 
1  Vern.  110.  2  Vern.  332.)  a  letter  has  heen  held  a  sufficient  agreement 
in  writing,  if  it  were  signed  by  the  party,  to  bring  it  out  of  the  statute; 
and  cited  the  case  of  Leicester  and  Foxcroft,  Post,  560,  and  1  Atk.  12, 
fecits.    Ante,  519  S.  C.  cited  and  stated,  and  other  cases.' 

^Antfe,  519.  Post.  533,  and  560.  Gilb.  Chan.  244.  1  Eq.  abr.  19,  pi.  4. 
and  20,  pi.  5. — Reporter's  note. 

"The  above  case  is  more  amply  and  accurately  statfxl  by  Peere  Williams: 
it  is  there  mentioned,  tliat  there  was  a  letter  from  the  husband.  Sir  G.  Max- 
well (who  was  defendant,  and  not  plaintiff,  as  erroneously  appears  from  the 
above  statement),  that  evidenced  the  agreement;  yet  Lord  Chancellor  Parker 
held  the  plea  of  the  statute  to  be  valid,  and  allowed  it.  1  Wms.  618.  Strange, 
236,  S.  C.  See  also  the  case  of  Ayliffe  v.  Tracy,  2  Wms.  G5,  where  it  is  held 
that  a  letter  from  the  father  to  his  daughter,  by  which  he  agrees  to  give  her 
30001.  portion,  and  this  is  not  shown  to  the  party,  who  afterwards  married  her, 
does  not  take  the  promise  out  of  the  Statute  of  Frauds. — Vid.  the  case  of 
Taylor  v.  Beech,  1  Vesey,  297. — Reporter's  note. 


462  WOOD  V.  MIDGLEY  [part  l 

WOOD  V.  MIDGLEY. 

In  the  Court  of  Appeal  in  Chancery,  1854. 

[5  De  Gex,  Macnaghten  and  Gordon  41.] 

This  was  an  appeal  from  the  decision  of  Vice-Chancellor  Stuart  over- 
ruling the  demurrer  of  the  defendant  to  a  bill  for  speeitic  performance 
filed  by  vendors  of  leasehold  property.  The  ground  of  the  demurrer  was 
that  the  bill  alleged  no  sufficient  agreement  in  writing  within  the  Statute 
of  Frauds.  The  substance  of  the  material  statements  of  the  bill  are  set 
out  in  the  report  of  the  case  below,  in  the  second  volume  of  Messrs. 
Smale  and  Giffard's  Heports,  page  115. 

The  case  made  by  them  was  that  the  premises  were  put  up  for  sale 
by  the  directions  of  the  plaintifi:"s,  subject  to  certain  printed  particulars 
and  conditions ;  that  the  defendant  called  upon  the  auctioneer,  and  went 
with  him  to  the  plaintiiis'  solicitor,  and  that  the  conditions  of  sale  were 
then  altered  and  turned  into  an  agreement  for  sale  by  private  contract 
by  the  direction  of  the  defendant,  who  approved  of  the  draft  so  prepared, 
and  agreed  to  sign  it.  That  the  auctioneer  then  signed  the  following 
memorandum : 

"  Memorandum :  Mr.  Thomas  Midgley  has  paid  to  me  the  sum  of  £50,  as 
a  deposit,  and  in  part  payment  of  £1,000,  for  the  purchase  of  the  Ship  and 
Camel  Public-house,  at  Dockhead ;  the  terms  to  be  expressed  in  an  agree- 
ment to  be  signed  as  soon  as  prepared.  William  Love.ioy. 

"  5th  of  July,  1853." 

The  bill  alleged  that  the  above-mentioned  draft  was  the  agreement 
referred  to  in  the  memorandum.  It  also  stated  that  the  defendant's 
solicitors,  by  letter  to  the  auctioneers,  stated  that  the  defendant  declined 
to  enter  into  the  agreement,  and  demanded  back  the  deposit. 

The  demurrer  was  as  follows:  "The  defendant  demurs  in  law  to  the 
said  bill,  and  for  cause  of  demurrer  shows  that  it  appears  by  the  bill  that 
neither  the  agreement  which  is  alleged  by  the  bill,  and  of  which  the  bill 
prays  the  specific  performance,  nor  any  memorandum  or  note  thereof, 
was  ever  signed  by  this  defendant,  or  any  person  thereunto  by  the  defend- 
ant lawfully  authorized  within  the  meaning  of  the  Statute  of  Frauds." 

The  Lord  Justice  Turner.'  The  Vice-Chancellor  in  his  judgment 
says  that  this  is  a  case  on  which  different  minds  may  arrive  at  different 
conclusions,  and  it  is  one  on  which  my  conclusion  differs  from  his 
Honor's. 

LTpon  the  merits  the  argument  is  threefold.  First,  it  is  said  that  the 
defendant  has  so  acted  as  to  avoid  signing  the  agreement,  holding  the 
other  party  bound  by  the  agreement,  and  Maxwell  v.  Mountacute,  Prec. 
in  Ch.  526,  is  referred  to  on  this  head.     But  the  principle  of  that  and 

'  Only  so  miicli  of  Uio  opinion  is  givon  ns  relates  to  the  question  of  fraud. 


CHAP,  v.]  LEE  PEEK  v.  NETTIE  A.  PEEK  463 

similar  cases  is  fraud.  If  a  party  has  been  guilty  of  fraud,  beyond  all 
doubt  the  court  will  not  let  him  take  advantage  of  the  Statute  of  Frauds. 
All  the  cases  referred  to.  including  Ilannnersley  v.  De  Biel,  12  CI.  &  Fin. 
45;  Walker  v.  Walker,  2  Atk.  98,  and  Muckleston  v.  Brown,  6  Ves.  52, 
rest  on  this  principle.  Is  there,  then,  a  case  alleged  by  this  bill  of  this 
nature,  that  the  defendant  did  by  his  fraudulent  act  prevent  the  agree- 
ment from  being  reduced  to  writing?  I  think  that  there  is  no  allegation 
on  the  bill  bringing  forward  a  case  of  fraud.  The  case  alleged  is  simply 
this,  that  there  was  an  agreement  for  a  sale  by  the  plaintiffs  to  the 
defendant  for  £1,000,  and  the  defendant  said  that  he  would  not  sign 
any  agreement.  The  law  has  said  that  the  defendant  is  not  to  be  sued 
unless  upon  an  agreement  signed  by  him.  Is  it  a  fraud  on  that  law  for 
him  to  say,  I  have  agreed,  but  I  will  not  sign  an  agreement? 

The  demurrer  must  be  allowed. 

The  LoKD  Justice  Knight  Bruce  concurred. 


LEE  PEEK  V.  NETTIE  A.  PEEK. 

In  the  Supreme  Court  of  California,  1888. 

[77  California  106.] 

Appeal  from  a  judgment  of  the  Superior  Court  of  San  Bernardino 
County,  and  from  an  order  refusing  a  new  trial. 

The  facts  are  stated  in  the  opinion. 

Hayne,  C.  Ejectment,  with  a  cross-complaint  by  defendant  praying 
for  a  conveyance  of  the  legal  title.    The  facts  are  as  follows : 

One  L.  R.  Peek  orally  promised  the  defendant  that  if  she  would 
marry  him  he  would,  on  or  before  the  marriage,  convey  to  her  the  prop- 
erty in  controversy.  She  relied  upon  this  promise,  and  married  him 
"  for  no  other  reason  or  consideration."  The  conveyance  was  not  made. 
He  put  it  ofi  by  excuses  and  protestations,  and  on  the  morning  of  the 
marriage,  without  the  knowledge  of  defendant,  conveyed  the  property 
to  his  son  by  a  former  marriage,  who  was  then  a  boy  about  ten  years 
old.  The  marriage  with  defendant  did  not  prove  a  happy  one,  and  after 
a  year's  residence  upon  the  property,  Peek  deserted  the  defendant,  and 
the  son,  Lee  Peek,  brought  the  present  action  to  recover  possession  of  the 
property.  The  court  below  gave  judgment  for  the  plaintiff,  and  the  de- 
fendant appeals. 

The  foundation  of  the  defendant's  claim  being  the  promise  of  L.  R. 
Peek,  the  first  question  to  be  considered  is  whether  such  promise  was 
of  any  validity.  It  is  clear  that  it  was  within  the  Statute  of  Frauds. 
But  it  is  contended  that  there  was  such  part  performance  and  fraud  as 


464  LEE  PEEK  v.  NETTIE  A.  PEEK  [part  i. 

■would  induce  a  court  of  equity  to  give  relief,  notwithstanding  the  statute/ 
We  think  that  if  the  actual  fraud  of  L.  R.  Peck  be  left  out  of  view, 
there  was  no  such  part  performance  as  would  take  the  case  out  of  the 
statute.  There  may  undoubtedly  be  cases  of  a  part  performance  of  oral 
antenuptial  agreements  sufficient  to  warrant  their  enforcement  in  equity. 
See  Neale  v.  Neale,  9  Wall.  1.  But  it  seems  to  be  generally  agreed  that 
the  marriage  alone  does  not  amount  to  such  part  performance.  See 
Atherly  on  Marriage,  90;  Browne  on  Statute  of  Frauds,  4th  ed.,  §  459; 
Henry  v.  Henry,  27  Ohio  St.  121.  With  reference  to  this  subject.  Story 
says :  "  The  subsequent  marriage  is  not  deemed  a  part  jjerf  ormance, 
taking  the  case  out  of  the  statute,  contrary  to  the  rule  which  prevails  in 
other  cases  of  contract.  In  this  respect  it  is  always  treated  as  a  peculiar 
case  standing  on  its  own  grounds."  1  Story's  Eq.  Jur.  §  768.  Nor  does 
the  fact  that  the  defendant  resided  with  her  husband  upon  the  property 
make  any  difference.  The  reason  assigned  for  holding  possession  to  be 
part  performance  is,  that  unless  validity  be  given  to  the  agreement  the 
vendee  would  be  a  trespasser.  But  it  is  manifest  that  this  reason  would 
not  apply  where  the  vendor  was  the  husband  and  the  vendee  the  wife, 
living  with  him  upon  the  property.  The  possession  which  is  referred  to 
by  the  cases  which  hold  it  to  be  sufficient  part  performance  is  a  posses- 
sion exclusive  of  the  vendor.  Browne  on  Statute  of  Frauds,  4th  ed., 
§474. 

But  the  fact  that  the  marriage  was  brought  about  by  the  actual  fraud 
of  L.  R.  Peek  seems  to  us  to  make  a  difference.  There  can  be  little 
doubt  upon  the  record  that  there  was  actual  fraud  on  his  part.  He 
denies  that  he  made  any  promise  to  convey  the  property  in  controversy. 
But  the  court  finds  that  he  did  make  it,  and  taking  this  to-be  the  fact, 
we  think  that  the  defendant's  account,  as  to  the  time  of  the  promise  and 
of  the  reason  she  married  him  without  the  conveyance,  must  be  accepted 
as  the  true  one.  According  to  her  testimony,  the  promise  was  repeated 
up  to  the  time  of  the  marriage,  and  she  was  induced  to  have  the  cere- 
mony performed  before  the  conveyance  was  executed  by  means  of  ex- 
cuses and  protestations  which  must  have  been  made  for  the  purposes  of 
deceiving  her.  On  the  day  before  the  marriage  he  pretended  that  he 
was  going  to  have  the  deed  executed  at  once.  He  said  to  the  defend- 
ant :  "  The  officers  are  in  town  that  are  required  to  draw  up  the  papers. 
Come  to-night  and  I  will  have  the  place  deeded  to  you,  and  the  fifteen 
thousand  dollars  put  in  your  name.  Tie  left  me  in  the  hotel,  and  in  a 
few  minutes  he  came  and  told  me  that  Mr.  Frank  McKenny  was  out  of 
town,  and  it  could  not  be  attended  to  that  evening."  The  next  day,  "  he 
said  he  would  have  the  deeds  drawn,  and  he  went  up  and  said  that 
they  were  all  busy  at  the  court-liouse,  and  he  couldn't  have  it  done  at 
lli;i(  time,  and  he  called  on  mc  again  with  the  same  story — that  the 
gentlemen  at  the  court-house  were  busy,  and  that  he  could  not  have  the 
deeds  fixed,  and  that  I  could  rest  contented."  He,  however,  succeeded 
'  Only  so  nnicli  of  tlio  o|»iiiion  is  given  as  relates  to  this  question. 


€HAP.  v.]  LEE  PEEK  v.  NETTIE  A.  PEEK  465 

in  inducing  the  defendant  to  marry  him  that  evening,  by  protesting  that 
the  papers  should  be  executed  as  soon  as  practicable.  After  the  mar- 
riage he  kept  up  for  a  short  time  the  pretense  that  he  was  going  to  ful- 
fil his  promise,  but  never  did  so. 

It  seems  clear  that  he  never  intended  to  have  the  deed  executed. 
The  story  that  he  could  not  have  it  done  because  the  officers  at  the 
court-house  were  busy  is  ridiculous.  On  the  very  day  that  he  was 
making  this  excuse,  he  got  a  deed  executed,  conveying  the  property  to 
his  son.  And  the  fact  that  he  induced  the  defendant  to  marry  him  by 
promising  to  convey  the  property  to  her,  when  at  that  very  time  he  was 
conveying  it  to  somebody  else,  seems  conclusive  as  to  his  fraudulent 
intent.  We  think,  therefore,  that  the  conclusion  of  the  court  belov/ 
that  the  deed  was  not  made  "  with  any  fraudulent  intent  whatever  "  is 
not  sustained  by  the  facts. 

This  fraud  on  the  part  of  L.  R.  Peek,  by  which  he  induced  the  de- 
fendant to  irretrievably  change  her  condition,  seems  to  us  to  be  ground 
for  relief  in  equity.  It  has  been  laid  down  that  if  the  agreement  was 
intended  to  be  reduced  to  writing,  but  was  prevented  from  being  so  by 
the  fraudulent  contrivance  of  the  party  to  be  bound  by  it,  equity  will 
compel  its  specific  performance.  1  Story's  Eq.  Jur.  §  768;  Atherly  on 
Marriage,  85.  And  the  recent  case  of  Green  v.  Green,  34  Kan.  740;  55 
Am.  Hep.  256,  is  exactly  in  point.  In  that  case  a  widow,  owning  160 
acres  of  land,  orally  promised  a  man  that  if  he  would  marry  her  she 
would  devote  the  proceeds  of  the  land  to  their  joint  support.  Relying 
upon  this  promise  he  married  her,  but  subsequently  ascertained  that  on 
the  eve  of  the  marriage  she  had  conveyed  the  property  to  her  children  by 
former  marriage,  "  in  consideration  of  love  and  affection."  The  court 
held  that  he  could  maintain  an  action  to  have  the  deed  set  aside  on  the 
ground  of  fraud.  Compare  also  Petty  v.  Petty,  4  B.  Mon.  215;  39  Am. 
Dec.  501. 

We  do  not  say  that  the  mere  fraudulent  omission  to  have  an  agree- 
ment reduced  to  writing  would  of  itself  be  ground  for  specifically  en- 
forcing the  agreement.  But  where  the  fraudulent  contrivance  induces 
an  irretrievable  change  of  position,  equity  will  enforce  the  agreement. 
And  the  marriage  brought  about  by  the  fraudulent  contrivance  is  a 
change  of  position  within  the  meaning  of  the  rule.  In  Glass  v.  Hul- 
bert,  102  Mass.  24 ;  3  Am.  Rep.  418,  in  reasoning  upon  somewhat  different 
facts,  to  the  conclusion  that,  in  order  to  be  ground  for  the  enforcement 
of  the  oral  contract,  the  fraudulent  contrivance  must  have  induced  some 
irretrievable  change  of  position,  the  court  said :  "  The  eases  most  fre- 
quently referred  to  are  those  arising  out  of  agreements  for  marriage 
settlements.  In  such  cases  the  marriage,  althoiigh  not  regarded  as  a  part 
performance  of  the  agreement  for  a  marriage  settlement,  is  such  an  irre- 
trievable change  of  situation,  that  if  procured  by  artifice,  upon  the  faith 
that  the  settlement  had  been  made,  or  the  assurance  that  it  would  be 
executed,  the  other  "party  is  held  to  make  good  the  agreement,  and  not 


466  REIGAL  v.  WOOD  [part  i. 

permitted  to  defeat  it  by  pleading  the  statute."  This,  we  think,  is  a 
correct  statement  of  the  law. 

We  therefore  advise  that  the  judgment  and  order  denying  a  new  trial 
be  reversed,  and  the  cause  remanded  for  a  new  trial. 

Belcher,  C.  C,  and  Foote,  C,  concurred.' 


REIGAL  V.  WOOD. 


In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1815. 

[1  Johnson's   Chancery  402.] 

The  bill  which  was  for  an  injunction,  stated,  that  on  the  23d  of  Jan- 
uary, 1801,  the  plaintiffs  purchased  of  John  Smith,  200  acres  of  land  in 
lot  No.  54,  in  the  township  of  Manlius,  for  1,900  dollars.  That  the  land 
was  then  subject  to  a  mortgage  by  Smith  to  Michael  Myers,  for  800 
dollars,  which  the  plaintiffs  paid  to  Myers,  who  agreed  that  the  mort- 
gage might  remain  for  their  use,  and  to  secure  their  title.  The  plaintiffs 
took  possession  of  the  land,  which  they  divided  equally  between  them. 
That,  in  June,  1810,  the  plaintiffs  were  informed  that  Thaddeus  M. 
Wood,  defendant,  had  caused  the  land  to  be  sold,  at  the  sheriff's  sale,, 
under  a  judgment  in  the  name  of  Daniel  Avery,  (defendant,)  against 
John  Smith  and  Aaron  Wood,  obtained  13  or  14  years  ago,  in  the  Onon- 
daga court  of  common  pleas,  on  a  promissory  note  for  sixty  dollars,  for 
goods  sold  by  Avery,  as  trustee,  to  one  Dickout,  an  absconding  debtor. 
That  the  defendants,  T.  M.  Wood  and  George  Plall,  purchased  the  land  at 
the  sheriff's  sale.  That  the  plaintiffs  applied  to  Wood  on  the  subject,  who, 
at  first,  agreed  to  accept  40  dollars  on  the  judgment,  and  release  the  pur- 
chase, but  afterwards  demanded  payment  of  another  judgment  against 
John  Smith,  in  favour  of  Peter  Smith,  for  300  dollars,  which  Wood 
alone,  or  inconjunction  with  two  of  the  defendants,  Isaac  and  John 
Delamater,  had  before  purchased  off  Peter  Smith.  That  the  plaintiffs, 
through  ignorance,  yielded  to  the  terms  demanded,  and  gave  Wood  their 
bonds  and  mortgages  on  the  promises,  for  308  dollars,  payable  in  a  short 
time,  with  interest.  The  sum  being  divided  into  four  equal  parts,  for 
which  four  bonds  were  given,  and  Wood  and  Hall  released  their  claim  to 
the  land  to  each  of  tlie  plaintiffs  separately.     Tlint,  afterwards,  on  inves- 

*  And  son  the  interesting  case  of  Creen  v.  Green,  1886,  34  Kas.  740,  in 
which  the  def(!ndant — a  widowed  woman — persuaded  the  one  armed  plaintiff 
tf)  marry  her  solely,  it  would  seem,  upon  the  promise  to  convey  to  him  land 
which  after  marriage  she  conveyed  to  other  parties  in  trust  for  the  children 
by  lier  foriner  marriage. 


CHAP,  v.]  KEIGAL  V.  WOOD  467 

tigation,  the  plaintiffs  found  that  John  Smith,  after  the  judgment 
against  him,  in  favour  of  Avery,  had  paid  the  amount  of  the  judgment  to 
John  Rappolye,  the  creditor  who  had  instituted  the  proceedings  against 
Dickhout,  and  had  paid,  in  boards,  the  costs  to  Wood.  That  Wood,  in 
order  to  overreach  the  purcliase  of  the  land  by  the  plaintiffs,  had  caused 
the  judgment  to  be  revived  by  scire  facias,  v^^ithout  the  knowledge  or  con- 
sent of  Avery  or  Kappelye;  and  that  John  Smith,  being  insolvent,  aged, 
and  having  removed  out  of  the  county,  did  not  attend  to  the  suit.  That 
the  judgment  of  Peter  Smith  was  assigned  as  above  mentioned,  with 
an  express  agreement  that  the  land  of  the  plaintiffs  should  not  be  affected 
by  it,  and  made  solely  for  the  purpose  of  securing  and  protecting  an- 
other piece  of  land  claimed  by  Wood  and  the  Delamaters.  That  on  the 
revival  of  the  judg-ment  by  the  scire  facias,  Wood  well  knew  of  the  pur- 
chase of  the  land  by  the  plaintiff's,  and  their  settlement  thereon :  that  the 
plaintiff,  Frederick  Reigal,  has  paid  off  his  mortgage  to  Wood;  but  the 
other  plaintiffs  being  unable  to  pay,  Wood  has  advertised  their  lands  for 
sale,  under  the  mortgage,  and  also  put  their  bonds  in  suit.  And  the 
plaintiffs  prayed  for  an  injunction  to  stay  his  proceedings,  and  for 
relief,  &g. 

The  Chancellor  [Kent].  It  appears  to  me,  from  a  view  of  all  the 
facts  and  circumstances  attending  this  case,  that  I  am  bound  to  consider 
the  judgment  upon  the  scire  facias  as  unduly  obtained,  and  that  the  de- 
fendant cannot,  in  justice  and  good  conscience,  be  permitted  to  hold  any 
advantage  which  he  may  have  obtained  under  it.  It  is  a  well-settled 
principle,  in  this  court,  that  relief  is  to  be  obtained  not  only  against  writ- 
ings, deeds,  and  the  most  solemn  assurances,  but  against  judgments  and 
decrees,  if  obtained  by  fraud  and  imposition.  Barnesly  v.  Powell,  1  Ves. 
120,  284,  289. 

Wood,  the  principal  defendant,  admits,  in  his  answer,  that  when  he 
undertook  to  revive  the  judgment  of  Avery  &  Bennet  v.  Smith  &  Wood, 
there  was  but  3  dollars  and  96  cents  of  the  debt  due.  His  object,  cer- 
tainly, was  not  that  small  balance;  and  it  does  not  even  appear  that,  as 
to  that  sum,  he  had  any  direction  to  issue  the  scire  facias,  from  the  per- 
sons in  whose  names  it  was  issued,  or  to  whom  the  money  was  due.  It 
is  evident  his  object  was  to  secure  another  and  larger  demand  against 
Smith,  totally  unconnected  with  the  judgment,  and  that,  as  Smith  was 
insolvent,  as  well  as  old,  blind,  and  helpless,  he  sought  to  secure  this  de- 
mand by  a  contrivance  calculated  to  defeat  the  title  of  the  unsuspecting 
purchasers  holding  lands  under  Smith.  It  is  in  proof,  that  he  knew  that 
Smith  had  conveyed  his  interest  in  lot  54,  in  Manlius,  to  third  persons; 
and  the  interference  is  irresistible,  from  his  frequent  intercourse  with 
that  town,  that  he  knew  that  the  land  was  in  the  actual  occupation  of 
the  purchasers,  and  had  received  large  and  valuable  improvements.  No 
notice,  however,  is  given  to  them,  as  ter-tenants,  of  the  scire  facias.  We 
have  reason  to  presume  it  was  intentionally  avoided,  and  he  is  content 
with  a  service  o^the  writ  on  that  very  old  and  blind  pauper,  who  had 


468  REIGAL  v.  WOOD  [part  i. 

neither  interest  nor  disposition  to  take  care  of  the  suit,  and  who,  about 
that  time,  had  gone,  or  removed,  to  a  distant  county.  A  verdict  is, 
accordingly,  obtained  upon  the  scire  facias,  without  any  opposition  from 
Smith's  uninstructed  counsel,  for  the  whole  amount  of  the  original  judg- 
ment, though  he  knew,  at  the  time,  that  it  had  long  before  been  nearly, 
if  not  entirely  discharged.  He  issues  his  execution,  and  directs  the  whole 
of  the  judgment  to  be  levied;  and  the  sheriff,  under  his  direction,  sells, 
not  upon  the  premises,  but  in  another  town,  all  the  lands  of  the  present 
plaintiffs,  and  which  had  cost  them,  eight  years  before,  near  2,000  dollars. 
This  sale,  as  well  as  the  previous  proceedings,  was  unknown  to  the  plain- 
tiffs, and  the  lands  were  bid  off  by  a  partner  of  Wood,  for  his  use,  at  a 
nominal  sum.  This  partner  says,  that  he  bid  to  save  the  debt  of  him  and 
Wood,  and  which,  as  it  appears,  consisted  chiefly  of  an  antiquated  ac- 
count of  costs  and  charges,  as  attorneys  for  Smith.  Having  thus 
acquired  a  title.  Wood  imposes  terms  upon  the  plaintiffs  as  the  previous 
owners  of  the  land.  He  insists  upon  the  payment  of  the  principal  part  of 
his  demand  against  Smith,  and  compels  them  to  redeem  their  land  by 
giving  him  bonds  and  mortgages  to  the  amount  of  308  dollars.  Smith 
denies  that  any  part  of  the  demand  is  due;  and  whether  it  be  so  or  not, 
the  settlement  cannot  be  binding  upon  the  plaintiffs;  for  the  same  im- 
position which  attended  the  judgment,  also  infected  this  settlement,  as  it 
was  made  by  them,  totally  uninformed  of  their  rights,  and  in  ignorance 
of  the  fraud  by  which  the  judgment  was  procured. 

I  think  the  weight  of  evidence  is,  that  the  whole  of  the  original  judg- 
ment, costs  as  well  as  debt,  had  long  before  been  satisfied.  Smith  testifies 
that  he  had  paid  not  only  the  small  balance  of  the  debt,  but  the  costs, 
in  boards;  and  another  witness  (Hall)  says,  that  Wood  had  the  benefit  of 
some  boards  upon  some  claim  which  Wood  had  against  Smith;  and  in 
the  account  exhibited  by  Wood,  in  this  cause,  he  gives  no  credit,  and 
makes  no  mention  of  the  boards. 

I  am  of  opinion,  therefore,  that  Wood  cannot  be  permitted  to  acquire 
and  hold  any  advantage  whatever  under  the  judgment  obtained  upon  the 
scire  facias,  and  that  the  whole  proceeding  was  an  imposition  upon  the 
plaintiffs.  I  shall  accordingly  decree,  that  the  bonds  and  mortgages  men- 
tioned in  the  pleadings  be  given  up  and  cancelled,  and  that  the  money 
which  has  been  paid  upon  one  of  the  bonds  and  mortgages  be  re- 
funded, with  interest;  and  that  the  defendant,  Wood,  pay  the  costs  of 
this  suit;  and  that  the  bill,  as  to  the  other  defendants,  be  dismissed  with- 
out costs.  Decree  accordingly. 


CHAP,  v.]  BAREOW  V.  RlilNELANDER  469 


BARROW  V.  RIIINELANDER. 

In    the    Court    of    Chancery    op    New    York,    before    Chancellor 

Kent,  1815. 

[1  Johnson's  Chancery  550.] 

The  Chancellor  [Kent].  This  is  a  strong  and  peculiar  case,  which 
calls  for  relief.  There  appears  to  be  very  great  reason  to  presume  an 
abused  confidence.  The  defendant  was  the  confidential  clerk  of  Prior, 
and  kept  his  cash  accounts,  and  had  free  access  to  all  his  papers  and 
moneys.  From  the  beginning  almost  of  their  connection,  Prior  was  em- 
barrassed, and  had  i*ecourse  to  the  defendant  for  the  loan  of  moneys. 
This  created,  at  once,  a  delicate  relation  between  the  master  and  the 
servant;  and  the  rapidity  with  M'hich  loans  and  debts  were  accumulated, 
securities  exacted,  the  load  of  dependency  increased,  and  blind  and 
necessitous  submission  yielded,  is  distressing  to  learn,  even  as  told  in  the 
defendant's  answer.  There  are  two  witnesses  to  the  charge  of  usury; 
and  the  attempt  made,  by  the  defendant,  to  get  rid  of  the  charge,  under 
the  explanation  of  taking  compound  interest,  is  not  sufficient.  The  de- 
fendent  does  not  put  himself  upon  the  benefit  of  the  settlements  made 
from  time  to  time,  but  he,  in  fact,  opens  the  accounts  by  his  answer,  and 
admits  that  the  entries  in  the  cash  books  were  generally  made  by  him, 
and  that  they  contain  the  evidence  of  his  loans.  There  is,  also,  proof  of 
mistakes  and  deficiencies  in  the  cash  books,  and  of  alterations.  One  mis- 
take, for  instance,  of  a  charge,  by  the  defendant,  of  5001.,  on  the  15th  of 
June,  1792,  is  not  in  the  books.  Other  mistakes  are  alleged  and  shown ; 
other  instances  of  abused  confidence  are  charged,  as  taking  property  from 
Prior,  without  his  assent.  In  short,  there  are  so  many  unpleasant  and 
suspicious  circumstances  attending  this  case,  leading  so  strongly  to  an 
inference  of  usury,  oppression,  and  fraud,  that  it  appears  essential  to  the 
honour  of  the  court,  and  the  ends  of  justice,  that  all  these  multiplied 
settlements  and  obligations  should  be  set  aside,  and  that  an  account,  at 
large,  from  the  commencement  of  their  dealings,  should  be  taken  and 
stated. 

The  cases  cited  by  the  counsel  for  the  plaintiff,  bear  very  pointedly 
upon  the  circumstances  of  this  case,  and  show,  that  there  is  nothing  un- 
usual in  granting  the  relief.  Thus,  in  Bosanquet  v.  Dashwood,  Cases 
temp.  Talbot,  37,  a  bill  was  filed  by  the  assignees  of  a  bankrupt,  charg- 
ing the  defendant's  testator  with  lending  on  usury,  and  that  agreements 
for  that  purpose  were  made  and  repeated  from  1710  to  1724.  It  was  a 
case  of  apparent  extortion  and  oppression,  and  the  accounts  were  ordered 
to  be  opened,  and  the  demands  reduced  to  moneys  really  lent,  with  law- 
ful interest  thereon.  So,  also,  in  Vaughan  v.  Lloyd,  cited  in  5  Vesey,  48, 
which  was  a  case  of  principal  and  agent,  and  of  abused  influence  and 


470  LIVINGSTON  v.  IIUBBS  [part  i. 

confidence  by  the  agent.  A  variety  of  deeds  and  settled  accounts  were 
opened,  though  the  accounts  had  been  settled  from  time  to  time,  and  the 
defendant  insisted  on  the  benefit  of  those  settlements.  It  appeared  that 
several  sums  of  money  were  charged  imi^roperly,  and  the  accounts  were 
impeached  in  several  points,  and  the  defendant  was  compelled  to  prove 
his  accoxmts  though  he  might  suffer ;  for  the  Chancellor  approved  of  the 
doctrine  in  Piddock  v.  Brown,  3  P.  Wms.  288,  that  where  there  are 
manifest  signs  of  fraud,  the  obligee  ought  to  be  put  to  the  proof  of 
actual  payment,  and  if  he  suffered,  it  was  owing  to  his  own  conduct.  The 
same  decision  was  made  in  Watt  v.  Grove,  2  Schoale  &  Lefroy,  492, 
which  was,  also,  the  case  of  an  agent  availing  himself  of  the  negligence 
and  extravagance  of  his  principal.  Indeed,  the  taking  advantage  of  a 
man's  necessities  is  as  wrong  as  taking  advantage  of  his  weakness.  This 
is  not  the  case  of  merely  showing  mistakes  and  omissions  in  a  stated  ac- 
count, in  which  the  party  is  allowed  to  do  no  more  than  surcharge  and 
falsify.  Appearances  wear  a  more  serious  aspect,  and  the  whole  account 
ought  to  be  opened  from  the  beginning,  as  was  done  in  Vernon  v.  Vawdy, 
2  Atk.  119,  after  a  period  of  23  years.  I  do  no  more  in  this  case,  than 
has  been  repeatedly  done  in  other  cases  which  were  not  more  oppressive 
in  appearance. 


LIVINGSTON  V.  IIUBBS. 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1817. 

[2  Johnson's  Cliancery  512.] 

The  bill  charged,  that  Daniel  Baldwin,  in  his  lifetime,  procured  a  deed 
from  the  plaintiff,  of  a  house  and  lot,  in  Brooklyn,  by  fraudulent  repre- 
sentations and  practices;  and  that  the  defendant  Hubbs  was  concerned 
with  Baldwin  in  the  fraud;  and  that,  immediately  after  the  deed  was  so 
procured,  Baldwin  confessed  a  judgment  to  Ilubbs  for  839  dollars,  which 
Hubbs,  shortly  thereafter,  assigned  to  the  defendant  Kobbins,  and,  as 
the  bill  charged,  with  knowledge  of  the  fraud. 

After  the  answers  of  the  defendants,  the  cause  was  put  at  issue,  and 
proof  taken,  and  the  cause  set  down  for  hearing. 

The  Chancellor.  The  allegation  of  fraud  is  abundantly  established; 
and  the  only  point  admitting  of  any  real  discussion  is,  how  far  Bobbins, 
who  appeared  to  be  a  purchaser  of  the  judgment  for  a  valuable  considera- 
tion, and  to  whom  no  charge  of  fraud  could  be  imputed,  was  to  be  pro- 
tected in  liis  lien  on  the  land.  Bobbins  purchased  the  judgment  subject 
to  all  the  equity  of  the  plaintiff  against  it,  while  it  existed  in  the  hands 
of  Ilubbs;  and  as  the  title  of  Baldwin  was  infected  with  gross  fraud,  it 


CHAP,  v.]  HOWELL  v.  BAKEK  471 

was  null  from  the  bej^inning.  The  fraudulent  judgment,  therefore, 
created  no  valid  subsisting  lien.  The  title  to  the  land  never  passed  from 
the  plaintiff;  and  there  is  no  rule  of  law,  or  equity,  to  protect  the  judg- 
ment in  the  hands  of  Robbins,  though  he  may  be  an  assignee  for  a  val- 
uable consideration,  without  notice  of  the  fraud,  for  he  took  the  assign- 
ment of  the  judgment  at  his  peril.  He  took  it  subject  to  all  the  existing 
vights  of  the  debtor;  and  these  rights  could  not  be  varied,  or  affected, 
by  the  assignment,  though,  perhaps,  the  right  of  a  third  person,  depend- 
ing upon  a  secret  trust,  might  be  affected.  Murray  &  Winter  v.  Lylburn 
and  others.  Ante.  441.  The  judgment  was  not  an  article  of  ordinary 
commerce,  and  it  would  be  repugnant  to  justice  and  sound  policy,  to  per- 
mit fraud  to  be  successful  by  such  a  contrivance. 

The  land,  therefore,  must  be  decreed  to  be  reconveyed  to  the  plaintiff, 
discharged  of  the  judgment,  and  a  perpetual  injunction  awarded  against 
the  execution  of  the  judgment  upon  that  land. 

Decreed  accordingly. 


HOWELL  V.  BAKER. 


In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1819. 

[4  Johnson's  Chancery  118.] 

Bill  filed  January  19th,  1818,  to  redeem  land,  purchased  by  C.  Baker, 
defendant,  at  the  sheriff's  sale,  under  circumstances  which,  as  was  al- 
leged, constituted  him  a  trustee  for  P.  Howell,  the  defendant  in  the 
execution.  A  judgment  was  recovered  in  September,  1809,  in  the  Ulster 
Court  of  C.  P.  against  P.  H.,  at  the  suit  of  J.  R.  Boyd,  for  112  dollars 
and  95  cents,  in  which  suit  C.  B.,  the  defendant,  and  another,  were  the 
attorneys  for  the  plaintiff.  A  fi.  fa.  was  issued,  and  in  1810,  the  property 
of  P.  H.,  being  a  house  and  about  forty  acres  of  land,  was  advertised  for 
sale.  On  the  29th  of  December,  1810,  P.  H.  pa'd  the  defendant  C.  B., 
fifty  dollars,  and  the  sale  was  postponed.  The  bill  stated,  that  P.  H.  had 
paid  the  deputy  sheriff,  in  November,  1809,  27  dollars  and  50  cents, 
and  IS  dollars  on  the  execution,  in  December,  1809.  The  property  was 
again  advertised  for  sale,  and  sold  on  the  15th  of  May,  1812,  at  public 
auction,  by  the  sheriff,  to  C.  B.,  (who  attended  as  attorney  of  the  plain- 
tiff, Boyd,)  as  the  highest  bidder,  for  10  dollars.  The  bill  stated,  that  P. 
H.  had  made  several  small  payments  on  the  judgment ;  and  that,  in  1814, 
he  tendered  to  C.  B.  the  balance  due  on  the  judgment,  together  with  the 
10  dollars  paid  by  him,  amounting,  with  interest,  to  35  dollars  and  15 
cents,  which  he  refused  to  accept;  and  that  C.  B.  afterwards  3old  the 


472  HOWELL  v.  BAKER  [part  i. 

premises  for  1,200  dollars,  to  the  defendant  Clark,  who  purchased,  with 
full  knowledgre  of  all  the  circumstances.  The  bill  prayed,  that  the  de- 
fendants might  be  decreed  to  release  the  premises  to  the  plaintiff,  and 
deliver  up  the  possession,  etc. 

The  defendant  B.,  in  his  answer,  denied  that  he  purchased  the  prop- 
erty with  intent  to  hold  it  as  security  only  for  the  balance  due  on  the 
judgment,  but  that  he  purchased  for  his  own  benefit.  He  alleged,  that  he 
afterwards  paid  Boyd,  the  plaintiff,  the  balance  due  on  the  judgment; 
and  that  80  dollars  were  due  at  the  time  of  sale. 

It  appeared  from  the  evidence  taken  in  the  cause,  that  the  property, 
when  it  was  sold  at  auction  in  1812,  was  worth  about  2,000  dollars;  that 
P.  H.  was  absent  from  the  state  at  the  time;  that  it  was  a  stormy  day, 
and  no  persons  but  the  deputy  sheriff  and  B.  were  present  at  the  sale; 
that  after  the  sale,  B.  frequently  said,  that  he  would  give  up  the  prop- 
erty to  P.  H.  if  he  would  pay  the  balance  due  on  the  judgment,  and  the 
ten  dollars,  and  compensate  him  for  his  trouble ;  that  he  had  told  Boyd, 
the  plaintiff,  that  he  had  bid  off  the  property  for  him ;  and  that  the  de- 
fendant C,  before  he  purchased,  knew  all  the  circumstances. 

The  Chancellor.  The  defendant  B.  was  one  of  the  attorneys  to 
the  execution  under  which  the  sheriff  sold  the  land,  and  it  might  be  a 
question  whether  an  attorney  can,  in  such  case,  become  a  purchaser  for 
his  own  benefit.  He  is  the  agent  of  the  plaintiff,  and  generally,  has  the 
control  of  the  execution,  and  may  direct  the  time  and  place  of  sale.  It 
is  well  known  that  the  sheriff  receives  his  instructions  from  the  attorney, 
and  usually  follows  them,  under  the  general  regulations  of  the  statute, 
in  pressing,  or  in  postponing  the  sale,  and  as  to  the  terms  to  be  pre- 
scribed, and  the  particular  parts  of  the  real  estate  to  be  selected.  It  is 
dangerous  to  allow  a  person  who  has  such  a  material  agency  in  the  sale, 
the  capacity  of  buying  in,  on  his  own  account.  He  who  is  entrusted  with 
the  business  of  others,  ought  not  to  be  allowed  to  make  that  business  an 
object  of  interest  to  himself.  It  tends  to  abuse  and  corruption.  It  is 
upon  this  principle  that  the  assignees  of  a  bankrupt  are  not  allowed  to 
become  purchasers  on  the  sale  of  the  bankrupt's  estate.  The  bringing  it 
to  sale,  and  the  time  and  manner  of  the  sale,  are  very  much  in  their 
power.  A  purchase  by  the  solicitor  of  the  assignees  is  supposed  to  be 
within  the  reason  of  the  prohibition,  for  he  is  their  agent  to  direct  the 
sale ;  and  those  who  have  a  duty  to  perform  for  others,  should  not,  in  the 
discharge  of  that  very  duty,  deal  for  themselves.  It  has  accordingly  been 
held,  in  England,  {ex  parte  Hughes,  6  Ves.  617.  Ex  parte  James,  6  Ves. 
337.)  that  purchases  of  the  bankrupt's  estate,  at  public  sale,  by  the 
assignees,  or  their  agent  or  solicitor,  are  not  valid,  but  will  be  con- 
sidered as  made  in  trust  for  the  persons  entitled  to  the  surplus,  and  will 
be  set  aside  on  equitable  terms.  In  Hall  v.  Ilallet.  1  Cox,  134,  Lord 
TiiuRLOW  observed,  that  "  no  attorney  can  be  permitted  to  buy  in  things 
in  a  course  of  litigation,  of  which  litigation  he  has  the  management. 
This  the  policy  of  justice  will  not  endure." 


CHAP,  v.]  HOWELL  V.  BAKER  473 

But  though  the  rule  disiiualifying  trustees,  and  particularly  solicitors 
and  attorneys,  from  purchasing  at  sales  brought  about  through  their 
agency,  has  strong  pretensions  to  be  applied  to  this  very  case,  I  do  not 
perceive  it  to  be  incumbent  upon  me,  at  present,  to  decide  that  point. 
The  purchase  by  the  defendant  B.  was  made  under  special  circumstances, 
which  are  sufficient,  of  themselves,  (and  i^articularly  when  taken  in  con- 
nection with  his  character  as  attorney  to  the  execution,)  to  constitute 
him  a  trustee  for  the  parties,  whose  interests  were  concerned  in  the  sale. 
Boyd,  who  was  plaintiff  in  the  execution,  directed  the  defendant  B.  to 
attend  and  bid  off  the  property,  and  the  defendant  B.  afterwards  con- 
fessed to  his  client,  that  he  had  done  so,  and  that  the  deed  would  be 
executed  to  Boyd.  He,  also,  admitted  to  Howell,  the  defendant  in  that 
execution,  that  he  had  made  a  temporary  sale  of  the  property,  to  prevent 
the  expense  of  further  advertising  it,  and  that  he  would  receipt  the  exe- 
cution as  soon  as  it  was  paid  up.  These  two  witnesses  establish  the  fact 
that  the  purchase  was  not  intended,  at  the  time,  to  be  absolute,  and  for 
the  benefit  of  B.  In  addition  to  this  proof,  the  facts  admitted  by  the 
defendant  B.,  in  his  answer,  that  there  was  not  above  eighty  dollars  due 
on  the  execution,  at  the  time  of  sale,  including  his  costs,  and  that  he  bid 
only  ten  dollars,  though  he  afterwards  discharged  the  execution,  and  sold 
the  farm  for  1,200  dollars,  lead  strongly  to  the  same  conclusion. 

It  would  be  very  inequitable,  even  if  it  were  lawful,  to  allow  the  pur- 
chaser, in  such  case,  to  appropriate  the  bid  to  himself.  Non  omne,  quod 
licet,  honestum  est,  is  the  observation  of  Palus,  as  quoted  in  the  Digest, 
50,  17,  144,  and  we  have  a  similar  observation  from  another  Paul,  who 
received  inspiration  from  a  purer  source  than  the  Roman  law,  1  Cor. 
vi.  12. 

Indeed,  such  gross  inadequacy  of  price,  when  taken  in  connection  with, 
the  fact  that  the  sale  was  on  a  stormy  day,  and  that  no  persons  were  pres- 
ent but  the  sheriff  and  the  defendant  B.,  would  well  warrant  an  inference 
of  fraud  on  any  other  ground  than  the  one  I  have  taken.  The  most  rea- 
sonable conclusion,  and  the  only  one  honourable  to  the  defendant  B.,  is, 
that  the  purchase  was  intentionally  made,  at  the  time,  in  trust  for  the 
respective  interests  of  the  parties  to  the  execution. 

Howell  did  nothing,  afterwards,  to  release  his  right,  and  discharge  the 
trust,  and  when  B.  sold  to  the  defendant  C,  the  right  of  Howell,  or  his 
assignee,  to  redeem  the  property,  existed  in  full  force. 

Nor  is  the  defendant  C.  entitled  to  protection  as  a  bona  fide  purchaser, 
without  notice.  It  is  clearly  established  by  the  testimony,  that  he  pur- 
chased with  knowledge  of  all  the  material  circumstances  attending  the 
purchase  by  B.,  and  the  right  of  redemption  remained  in  full  force 
against  him.  He  purchased  at  his  peril,  and  after  being  duly  apprized 
of  the  infirmity  of  the  title  of  B. 

I  shall,  accordingly,  decree,  that  the  plaintiff  is  entitled  to  redeem  the 
estate,  upon  paying  the  balance  due  upon  the  execution,  with  interest, 
after  deducting  all  payments  made  by  Howell  to  the  sheriff,  or  to  the  de- 


474  ROSS  V.  CONWAY  [part  i. 

feiidant  B.,  and  upon  paying  the  amount,  with  interest,  of  all  the  incum- 
brances upon  the  estate  existing  at  the  time  of  the  sale,  and  subsequently 
discharged  by  either  of  the  defendants,  and  upon  paying  the  cash  value 
of  all  hona  fide  and  substantial  improvements  made  by  the  defendant  C, 
since  his  purchase.  I  shall  direct  a  reference  to  ascertain  the  amount  of 
the   same.  Decree    accordingly.^ 


ROSS  V.  CONWAY. 

In  the  Supreme  Court  of  California,  1892. 
[92  California  632.] 

Appeal  for  a  judgment  of  the  Superior  Court  of  Sonoma  County,  and 
from  an  order  denying  a  new  trial. 

The  facts  are  stated  in  the  opinion  of  the  court. 

Harrison,  J. — The  plaintiff,  as  the  sole  heir  of  his  mother,  Elizabeth 
G.  Ross,  brought  this  action  to  cancel  and  annul  two  certain  deeds  of 
trust  conveying  certain  real  estate  in  Santa  Rosa,  executed  by  his 
mother,  August  11,  1888,  and  August  18,  1888,  respectively,  alleging  that 
at  the  time  of  their  execution  his  mother  was  weak  in  body  and  that  her 
mind  was  impaired,  and  that  the  defendant  Conway,  who  was  the  pastor 
of  the  Roman  Catholic  church  of  Santa  Rosa,  of  which  she  had  been  for 
many  years  a  member,  and  who  was  also  her  spiritual  adviser,  had  there- 
by acquired  great  influence  over  her,  and,  taking  advantage  of  such 
influence  and  of  her  mental  weakness,  had  caused  her  to  execute  the  said 
deeds  of  trust  for  the  benefit  of  himself  and  of  the  church  of  which  he 
was  the  pastor.  The  defendant  denied  these  allegations,  and  the  cause  was 
tried  by  the  court,  a  jury  having  been  called  in  as  advisory  to  the  court 
upon  certain  issues.  The  verdict  of  the  jury  and  the  findings  of  the 
court  were  in  support  of  the  allegations  of  the  complaint,  and  judgment 
was  rendered  in  favor  of  the  plaintiff.  A  motion  for  a  new  trial  having 
been  made  and  denied,  an  appeal  has  been  taken  from  both  the  judgment 
and  the  order  denying  a  new  trial. 

The  two  deeds  of  trust  are  substantially  the  same,  the  last  one  having 
been  executed  merely  for  the  purpose  of  correcting  an  crroneoiis  descrip- 
tion in  the  first.  Under  the  trust  created  by  the  deeds,  the  trustees  are 
directed  to  sell  one  of  the  parcels  of  land  "  as  soon  as  practicable,"  and 
out  of  the  proceeds  thereof  apply  eight  thousand  dollars  in  the  improve- 
ment of  the  other  parcel,  and  pay  the  remainder  of  the  proceeds  to  the 
defendant  Conway.     Out  of  the  income  to  be  derived  from  the  parcel 

'And  sec  further,  tlio  opinions  of  Cliancollor  Kent  in  tlic  following  cases: 
Troup  V.  Wood,  1810,  4  .Tohns.  C'h.  228;  Lupton  v.  Cornell,  1819,  4  id.  262; 
Chcsterman  v.  Gardner,  1820,  5  id.,  29. 


CHAP,  v.]  ROSS  r.  CONWAY  475 

to  be  improved,  seventy-five  dollars  per  month  was  to  be  paid  to  the  plain- 
tiff, and  the  remainder,  monthly,  "to  the  pastor  of  the  Roman  Catholic 
church  in  Santa  Rosa,  to  be  disbursed  by  him  in  such  manner  as  he  may 
deem  charitable."  Other  provisions,  contingent  upon  the  death  or 
change  in  circumstances  of  the  plaintiff,  are  imnecessary  to  be  rej  eated 
here. 

The  issues  before  the  court  were,  in  substance,  whether  Mrs.  Ross  was, 
at  the  respective  dates  on  which  the  deeds  of  trust  were  executed,  of  weak 
mind,  or  able  to  comprehend  the  provisions  of  the  instruments;  and, 
whether  the  defendant  Conway  used  the  influence  which  he  had  acquired 
over  her  by  virtue  of  being  her  spiritual  adviser  for  the  purpose  of  pro- 
curing her  to  make  such  disposition  of  her  property.  Upon  these  issues 
there  was  much  conflicting  evidence  before  the  court,  both  in  the  testi- 
mony of  the  witnesses  who  were  examined,  as  well  as  in  the  circum- 
stances under  which  the  instruments  were  executed  and  the  purposes  held 
by  Mrs.  Ross  with  reference  to  her  son  and  to  the  church.  Upon  the 
evidence  before  it,  the  court  found  in  favor  of  the  plaintiff.  This  finding 
was  in  accordance  with  the  verdict  of  the  jury,  and  upon  a  motion  lor  a 
new  trial,  in  which  the  evidence  was  again  brought  before  the  court  for 
consideration,  it  adhered  to  its  former  conclusion.  Under  these  circum- 
stances, we  cannot  disregard  its  finding.  Inasmuch,  however,  as  counsel 
have  elaborately  argued  the  facts,  we  have  examined  the  record,  and  are 
of  opinion  that  the  evidence  fully  justifies  the  findings  of  the  court. 

The  court  finds  that  at  the  dates  of  the  execution  of  the  deeds  of  trust 
Mrs.  Ross  was  of  weak  mind  and  in  a  dying  condition,  and  that  she  died 
on  the  20th  of  August;  that  the  defendant  Conway  was,  and  had  for  a 
long  time  previously  been,  the  pastor  of  the  Roman  Catholic  church  at 
Santa  Rosa,  and  the  spiritual  adviser  of  Mrs.  Ross;  that  a  confidence 
was  reposed  in  him  by  her,  and  that  there  existed  on  his  part  an  influence 
and  apparent  authority  over  her  arising  out  of  his  relation  to  her 
as  her  spiritual  adviser,  and  that  he  took  an  unfair  advantage  of  this 
influence,  and  used  this  confidence  and  authority  for  the  purpose  of 
procuring  her  to  execute  the  two  deeds  of  trust.  The  court  also  finds  that 
Mrs.  Ross  had  in  December,  1887,  executed  a  will  of  all  her  estate,  with 
the  exception  of  some  minor  legacies,  in  favor  of  the  plaintiff  herein,  and 
that  the  provision  in  the  deeds  of  trust  for  the  defendants  other  than  the 
defendant  Conway  were  without  any  consideration  from  them,  but  were 
made  solely  through  the  influence  of  Conway. 

The  rule  is  inflexible  that  no  one  who  holds  a  confidential  relation 
towards  another  shall  take  advantage  of  that  relation  in  favor  of  himself, 
or  deal  with  the  other  upon  terms  of  his  own  making;  that  in  every 
such  transaction  between  persons  standing  in  that  relation  the  law  will 
presume  that  he  who  held  an  influence  over  the  other  exercised  it  unduly 
to  his  own  advantage,  or  in  the  words  of  Lord  Langdale  in  Casborne  v. 
Barsham,  2  Beav.  78,  "the  inequality  between  the  transacting  parties 
is  so  great,  that,  without  proof  of  the  exercise  of  power  beyond  that 


476  ROSS  V.  CONWAY  [part  i. 

which  may  be  inferred  from  the  nature  of  the  transaction  itself,  this 
court  will  impute  an  exercise  of  undue  influence" ;  that  the  transaction 
will  not  be  upheld,  unless  it  shall  be  shown  that  such  other  had  independ- 
ent advice,  and  his  act  was  not  only  the  result  of  his  own  volition, 
but  that  he  both  understood  the  act  he  was  doing  and  comprehended  its 
result  and  effect.  This  rule  finds  its  application  with  peculiar  force 
in  a  case  where  the  effect  of  the  transaction  is  to  divert  an  estate  from 
those  who  by  the  ties  of  nature  would  be  its  natural  recipients,  to  the 
person  through  whose  influence  the  diversion  is  made,  whether  such 
diversion  be  for  his  own  personal  advantage,  or  for  the  advantage  of  some 
interest  of  which  he  is  the  representative.  It  has  been  more  fre- 
quently applied  to  transactions  between  attorney  and  client  or  guardian, 
and  ward,  than  to  any  other  relation  between  the  parties,  but  the  rule 
itself  has  its  source  in  principles  which  underlie  and  govern  all  con- 
fidential relations,  and  is  to  be  applied  to  all  transactions  arising  out 
of  any  relation  in  which  the  principle  is  applicable.  It  is  termed  by 
Lord  Eldon  "  that  great  rule  of  the  court  that  he  who  bargains  in 
any  matter  of  advantage  with  a  person  placing  confidence  in  him  is 
bound  to  show  that  a  reasonable  use  has  been  made  of  that  confidence." 
Gibson  i'.  Jeyes,  6  Ves.  278.  It  was  said  by  Sir  Samuel  Romilly,  in 
his  argument  in  Huguenin  v.  Baseley,  14  Ves.  300,  that  "  the  relief  stands 
upon  a  general  principle  applying  to  all  the  variety  of  relations  in  which 
dominion  may  be  exercised  by  one  person  over  another," — a  principle 
which  was  afterwards  affirmed  by  Lord  Cottenham  in  Dent  v.  Bennett,  4 
Mylne  &  C.  277,  saying  that  he  had  received  so  much  pleasure  from  hear- 
ing it  uttered  in  that  argument  that  the  recollection  of  it  had  not  been 
diminished  by  the  lapse  of  more  than  thirty  years. 

That  the  influence  which  the  spiritual  adviser  of  one  who  is  about 
to  die  has  over  such  person  is  one  of  the  most  powerful  that  can  be 
exercised  upon  the  human  mind,  especially  if  such  mind  is  impaired  by 
physical  weakness,  is  so  consonant  with  human  experience  as  to  need 
no  more  than  its  statement;  and  in  any  transaction  between  them 
wherein  the  adviser  receives  any  advantage,  a  court  of  equity  will  not 
enter  into  an  investigation  of  the  extent  to  which  such  influence  has 
been  exercised.  Any  dealing  between  them  under  such  circumstances 
will  be  set  aside  as  contrary  to  all  principles  of  equity,  whether  the  bene- 
fit accrue  to  the  adviser  or  to  some  other  recipient  who,  through  such 
influence,  may  have  been  made  the  beneficiary  of  the  transaction. 
These  principles  have  been  so  invariably  announced  whenever  the  ques- 
tion has  arisen,  that  a  mere  reference  to  the  authorities  will  suffice. 
Norton  v.  Relly,  2  Eden,  280;  Huguenin  v.  Baseley,  14  Ves.  273; 
Thompson  v.  ITeffernan,  4  T)ru.  &  War.  201 ;  Dent  v.  Bennett,  4 
Mylne  &  C.  269;  In  re  Welsh.  1  Redf.  24G;  Richmond's  Appeal,  59 
Conn.  226;  Ford  v.  Ilennessy,  70  Mo.  580;  Pironi  v.  Corrigan,  47  N. 
J.  Eq.  135;  Connor  v.  Stanley,  72  Cal.  556;  1  Am.  St.  Rep.  84;  1  Bige- 
low  on  Fraud,  352;  Story's  Eq.  .Tur.,  sec.  311. 


CHAP,  v.]  ROSS  V.  CONWAY  477 

The  finding  of  the  court  that  Mrs.  Ross  did  not  have  any  independent 
advice  upon  the  subject  of  making  the  deeds  of  trust  is  fully  sustained 
by  the  evidence.  It  appears  from  the  record  that  the  attorney  who  pre- 
pared the  instruments  was  introduced  to  her  by  Conway,  and  that  the 
only  persons  with  whom  she  had  any  interview,  or  from  whom  she  could 
receive  any  advice  respecting  the  same,  were  this  attorney  and  the 
defendant  Conway.  On  the  9th  of  August  she  had  expressed  to  Conway 
a  desire  to  make  a  testamentary  disposition  of  her  property,  and  upon 
his  suggestion  that  Mr.  Collins  was  a  suitable  person,  she  requested  that 
he  would  send  him  to  her  at  the  hospital  where  she  was  lying.  He 
thereupon  sought  Collins,  and,  telling  him  the  wish  of  Mrs.  Ross, 
accompanied  him  to  the  hospital.  On  their  way  he  told  Collins  of  the 
mode  in  which  she  proposed  to  dispose  of  her  property,  and,  after  their 
arrival,  remained  in  the  room  with  them  while  she  was  giving  directions 
about  the  will,  going  out,  however,  occasionally,  for  short  intervals,  to 
visit  other  people  in  the  hospital,  and  leaving  the  building  before  the  will 
was  formally  executed.  Two  days  later  he  visited  Collins  at  his  office, 
and  after  hearing  the  will  read,  he  made  to  Collins  a  suggestion  of  some 
changes,  and  whether  a  deed  of  trust  would  not  be  preferable  to  a  will. 
An  appointment  was  then  made  between  him  and  Collins  to  meet  that 
afternoon  in  the  room  of  Mrs.  Ross  at  the  hospital.  After  their  arrival 
at  the  hospital,  Conway  made  a  suggestion  to  her  that  she  execute  a  deed 
of  trust  instead  of  a  will,  and  also  other  suggestions  in  reference  to  her 
disposition  of  the  property.  Only  himself  and  Collins  were  in  the 
room  during  this  consultation,  he,  however,  leaving  it  temporarily 
a  few  times  during  the  period  over  which  the  interview  extended, 
but  remaining  until  Collins  had  received  all  the  directions  that  she 
gave. 

Assuming  that  by  virtue  of  his  relation  to  her  he  had  acquired  an 
influence  over  her,  it  must  be  held  that  in  the  transaction  under  investi- 
gation there  was  an  undue  exercise  of  such  influence;  that  by  not  in- 
sisting that  she  should  have  independent  advice,  and  by  continuing  to 
remain  in  her  presence  during  the  interview  with  the  only  other  per- 
son whom  he  permitted  to  see  her,  he  exercised  an  influence  over  her 
actions,  which,  though  unseen  and  inaudible,  was  none  the  less  effective 
in  its  results.  "The  question  is,"  said  Lord  Eldon  in  Huguenin  r.  Base- 
ley,  14  Ves.  300,  "not  whether  she  knew  what  she  was  doing,  had  done, 
or  proposed  to  do,  but  how  the  intention  was  produced;  whether  all  that 
care  and  providence  was  placed  round  her,  as  against  those  who  ad- 
vised her,  which  from  their  situation  and  relation  with  respect  to  her 
they  were  bound  to  exert  on  her  behalf." 

"Wliile  the  contract  of  purchase  made  between  the  defendant  Con- 
way and  the  trustees  under  the  instruments  sought  to  be  annulled  was 
irrelevant  to  any  material  issue  before  the  court,  and  would  have  been 
properly  excluded  from  evidence,  we  are  unable  to  see  that  its  admission 
could  in  any  way  have  been  prejudicial  to  the  rights  of  the  appellants. 


478  ROSS  V.  CONWAY  [part  i. 

The  judgment  and  order  denying  a  new  trial  are  affirmed.' 

'  Corporation  of  Latter  Day  Saints  v.  Watson,  1902,  25  Utah,  45. 
In  Allcard  v.  Skinner,  1887,  L.  R.  36  Ch.  Div.  145,  the  facts  appeared 
to  be  that  the  plaintiff,  a  young  woman  of  twenty-seven,  becoming  interested 
in  charitable  work,  was  introduced,  through  the  good  offices  of  a  Rev.  Mr. 
Nihill,  her  confessor,  to  the  defendant,  the  founder  and  lady  superior  of  a 
Protestant  sisterhood.  After  some  considerable  association  with  the  members 
of  the  sisterhood  in  charitable  work,  the  plaintiff  was  admitted  as  a  member 
of  the  organization.  On  entering  the  society  she  made  certain  vows  (framed 
by  the  Rev.  Mr.  Nihill),  by  which  she  promised  to  devote  her  property  to 
the  purposes  of  the  sisterhood.  In  accordance  with  these  she  made  a  will, 
leaving  all  of  her  property  to  the  defendant.  She  also  made  valuable  gifts 
to  the  defendant,  including  large  sums  of  money  and  certain  railway  stock. 
Some  eight  years  later,  becoming  dissatisfied,  she  left  the  order,  and  a  few 
days  later  joined  the  Roman  Catholic  Church.  She  then  brought  suit  to 
recover  certain  of  the  gifts  made  to  the  defendant.  In  the  course  of  his 
opinion,  Lindley,  L.  J.,  said: 

"There  is  no  statutory  law  in  this  country  prohibiting  such  gifts  unless 
what  is  given  is  land  or  money  to  be  laid  out  in  land.  These  are  provided 
for  by  the  Mortmain  and  Charitable  Uses  Acts.  But  they  have  no  appli- 
cation to  this  case.  The  common  law,  as  distinguished  from  equity,  does  not 
invalidate  such  gifts  as  these.  There  being  no  duress  or  fraud,  the  only 
gi'ound  for  impeaching  such  gifts  at  law  would  be  want  of  capacity  on  the 
part  ot  the  donor;  and  although  the  plaintiff  was  a  religious  enthusiast,  no 
one  could  treat  her  as  in  point  of  law  non  compos  mentis.  There  is  no 
authority  whatever  for  saying  that  her  gifts  were  invalid  at  law.  It  is 
to  the  doctrines  of  equity,  then,  that  recourse  must  be  had  to  invalidate  such 
gifts  if  they  are  to  be  invalidated.  The  doctrine  relied  upon  by  the  appellant 
is  the  doctrine  of  undue  influence  expounded  and  enforced  in  Hugiienin  r. 
Baseley,  1 4  Ves.  273.  and  other  cases  of  that  class.  These  cases  may  be  sub- 
divided into  two  gioups,  which,  however,  often  overlap. 

"First,  there  are  the  cases  in  which  there  has  been  some  unfair  and 
improper  conduct,  some  coercion  trom  outside,  some  overreaching,  some  form 
of  cheating,  and  generally,  though  not  always,  some  personal  advantage 
obtained  by  a  donee  placed  in  some  close  and  confidential  relation  to  the 
donor.  Norton  v.  Relly,  2  Eden,  286 ;  Nottridge  v.  Prince,  2  Giff.  246 ;  Lyon  v. 
Home,  Law  Rep.  6  Eq.  655,  and  Whyte  v.  IMeade,  2  Ir.  Eq.  Rep.  420,  all 
belong  to  this  group.  In  Whyte  v.  Meade  a  gift  to  a  convent  was  set  aside, 
but  the  gift  was  the  result  of  coercion,  clearly  proved.  The  evidence  does 
not  bring  this  case  within  this  group. 

"The  second  group  consists  of  cases  in  which  the  position  of  the  donor 
to  the  donee  has  been  such  that  it  has  been  the  duty  of  the  donee  to  advise 
the  donor,  or  even  to  manage  his  property  for  him.  In  such  cases  the 
Court  throws  upon  the  donee  the  burden  of  proving  that  he  has  not  abused 
his  position,  and  of  proving  that  the  gift  made  to  him  has  not  been  brought 
about  by  any  undue  influence  on  his  ])art.  In  this  class  of  cases  it  has  been 
considered  necessary  to  shew  that  the  donor  had  independent  advice,  and 
was  removed  from  the  influence  of  the  donee  when  the  gift  to  him  was  made. 


CHAP,  v.]  PROOF  V.  IIINES  479 

PROOF  V.  IIINES. 
In  Chancery,  before  Lord  Chancellor  Talbot,  1735. 

[Cases  Tempore  Talhot  111.] 

The  plaintiff  being  intitled,  in  right  of  his  wife,  to  some  part  of  the 
hite  Sir  Thomas  Coleby's  estate,  and  being  a  very  mean  illiterate  person, 
and  in  very  poor  circumstances,  applied  to  the  defendant,  (a  brazier  by 
trade,)  and  his  wife  to  assist  him  in  making  out  his  pedigree,  and  getting 
such  proofs  as  were  necessary  to  the  making  out  his  title  to  this  estate; 
the  defendant  telling  him.  That  such  things  could  not  be  done  without 
nionej^;  and  he  answering.  That  he  had  none,  nor  did  not  know  where  to 
raise  any  without  the  defendant's  assistance,  desired  him  to  advance  it, 
and  he  would  repay  him :  The  defendant  accordingly  laid  out  several 
sums;  and  the  defendant's  wife  employed  several  persons  to  search  regis- 
ters, &c.  for  the  plaintiff;  pending  the  suit  the  defendant's  wife  often 
declared,  That  she  thought  herself  and  her  husband  intitled  to  a  good 
gratuity  for  their  trouble  and  assistance  of  the  plaintiff ;  but  was  resolved 
not  to  trust  to  the  plaintiff's  generosity,  but  to  bind  him  as  fast  as  pen 
and  ink  could  bind  him.  The  plaintiff  coming  some  time  after  to  the  de- 
fendant's wife,  desired  her  to  continue  her  and  her  husband's  care  for  his 
affairs;  she  thereupon  pressed  him  very  much  for  the  payment  of  what 
money  had  been  laid  out  by  them ;  whereupon  he  offered  to  give  a  bond 
for  10001.  payable  to  the  defendant  in  a  year,  for  what  services  they  had 
already  done,  and  for  such  care  as  they  would  hereafter  take  of  his  af- 
fairs; to  which  the  defendant's  wife  replied,  he  might  take  what  time 
he  pleased  for  payment  of  the  bond,  but  pressed  him  very  hard  for  re- 
payment of  what  had  been  laid  out  by  her  husband  and  her :  the  plaintiff 
gave  her  his  bond  for  10001.  for  the  use  of  the  defendant  her  husband 

Hugiienin  v.  Baseley  was  a  case  of  this  kind.  The  defendant  had  not  only 
acquired  considerable  spiritual  influence  over  the  plaintiff,  but  was  intrusted 
by  her  with  the  management  of  her  property.  His  duty  to  her  was  clear, 
and  it  was  with  reference  to  persons  so  situated  that  Lord  Eldon  used  the 
language  so  often  quoted  and  so  much  relied  on  in  this  case.  He  said, 
14  Ves.  299:  'Take  it  that  she  (the  plaintiff)  intended  to  give  it  to  him 
(the  defendant)  ;  it  is  by  no  means  out  of  the  reach  of  the  principle.  The 
question  is  not  whether  she  knew  what  she  was  doing,  had  done  or  proposed 
to  do,  but  how  the  intention  was  produced;  whether  all  that  care  and  provi- 
dence was  placed  around  her  as  against  those  who  advised  her,  which,  from 
their  situation  and  relation  with  respect  to  her,  they  were  bound  to  exert 
on  her  behalf.'  This  principle  has  been  constantly  recognized  and  acted  upon 
in  subsequent  cases,  but  in  all  of  them,  as  in  Huguenin  v.  Baseley,  14  Ves.  273, 
itself,  it  was  the  duty  of  the  donee  to  advise  and  take  care  of  the  donor. 
Where  there  is  no  such  duty,  the  language  of  Lord  Eldox  ceases  to  be 
applicable."  n 


480  PEOOF  V.  HINES  [paet  i. 

after  the  recovery  of  some  part  of  the  estate  by  the  plaintiff;  this  bond 
was  put  in  suit,  and  now  the  plaintiff  brought  his  bill  to  have  it  set  aside 
as  unduly  and  unconscionably  obtained,  by  taking  advantage  of  the  dis- 
tress he  was  then  under. 

It  was  in  proof  in  the  cause,  that  at  the  time  he  gave  this  bond  he  was 
in  the  meanest  circumstances,  being  reduced  so  low  as  to  live  upon  what 
broken  scraps  of  meat  he  could  get  from  taverns  and  such  places. 

Lord  Chancellor.  I  have  been  a  good  deal  doubtful  in  this  case :  for, 
as  on  the  one  hand  it  is  intirely  reasonable  to  leave  people  at  liberty  to 
dispose  of  their  property  as  they  think  fit;  so  on  the  other  hand,  it  is 
reasonable  to  prevent  any  imposition  in  such  disposal :  and  if  here  has 
been  no  imposition  on  the  plaintiff,  and  that  all  his  defence  be  his 
poverty,  or  the  inconvenieney  it  may  be  to  him  to  pay  this  sum,  that  will 
not  be  a  ground  for  relief.  But  as  this  case  is  circumstanced,  the  plain- 
tiff's poverty  is  not  to  be  omitted  in  the  consideration  of  the  transaction. 
His  circumstances  were  as  mean  as  can  be  imagined,  and  no  certainty 
that  he  should  be  ever  able  to  discharge  any  part  of  this  bond;  and  yet 
he  gives  an  obligation  for  10001.  to  be  paid,  at  all  events,  within  the  year. 
A  poor  illiterate  man,  who  applies  to  the  defendant  and  his  wife  for  aid 
in  pursuing  his  claim :  they  answer,  that  registers  could  not  be  searched, 
nor  other  things  done  without  money:  he  thereupon  replies,  that  he  has 
none,  but  desires  the  defendant  to  lay  it  down  for  him.  The  cause  goes 
on,  and  pending  this  suit,  the  defendant's  wife  presses  for  the  money 
laid  out ;  whereupon  the  plaintiff  declares,  that  for  the  services  they  have 
done,  and  he  hoped  they  would  continue,  he  would  give  a  bond;  upon 
which  the  wife  replies,  he  might  take  what  time  he  pleased  for  the  pay- 
ment of  the  bond;  but  at  the  same  time  again  presses  for  repayment  of 
the  money  laid  out  by  her  husband  and  her,  and  then  the  bond  is  given. 
So  that  here  is  a  plain  contract  between  them :  and  how  can  I  consider 
it  as  a  gratuity,  or  otherwise  than  as  a  contract?  Now  though  a  mere 
voluntary  contract  is  not  to  be  set  aside  purely  and  simply  because  it  is 
voluntary;  yet  that  differs  widely  from  the  present  case;  which  was  not 
intended  as  a  bounty,  but  as  an  execution  of  an  original  contract  for  the 
services  already  done.  Had  an  attorney,  pending  the  suit,  taken  such  a 
bond  as  this  upon  the  same  transaction,  would  not  the  court  set  it  aside? 
or  would  it  suffer  it  to  stand  any  farther  than  as  a  security  for  what  was 
justly  and  legally  due?  The  rule.  That  a  mischief  is  rather  to  he  suf- 
fered than  a  general  inconvenience,  docs  not  at  all  affect  this-  case ;  for, 
it  would  be  a  much  greater  inconvenience  to  leave  men  under  difficulties 
and  distresses  ojkhi  to  all  the  oppression  that  other  people  may  please  to 
make  them  undergo.  This  is  the  reason  upon  which  the  court  relieves 
against  bonds  given  by  young  heirs,  (Walter  v.  Dalt,  1  Chanc.  Cas.  276; 
Barny  v.  Beak,  2  Cha.  Cas.  136;  Barny  v.  Pitt,  2  Vern.  14;  Nott  v.  Hill,  1 
Vern.  167;  Knott  v.  Johnson,  2  Vern.  27;  Wiseman  v.  Beake,  2  Vern. 
121;  James  v.  Oades,  2  Vern.  402;  Earl  of  Ardglasse  v.  Muschamp,  1 
Vern.  237;  Bill  v.  Price,  1  Vern.  467;  Lamplugh  v.  Smith,  2  Vern.  77; 


CHAP,  v.]  NICHOLLS  v.  NICIIOLLS  481 

Curwen  v.  Milner,  3  P.  Will.  292,  in  notes  (c) ;  Twisleton  v.  Griffith,  1  P. 
Wil.  310;  Earl  of  Chesterfield  v.  Jansen,  1  Atk.  342,  351,  and  2  Ves.  144, 
155,  S.  C. ;  Barnardiston  v.  Lingood,  2  Atk.  133 ;  Sir  Will.  Stanhope  v. 
Cope,  2  Atk.  231 ;  Gwyne  v.  Heaton,  1  Bro.  Cha.  Rep.  1 ;  Heathcote  v. 
Paignon,  2  Bro.  Cha.  Rep.  167,  are  eases  in  which  this  court  has  relieved 
against  unconscionable  bargains,  and  cancelled  improvident  contracts  en- 
tered into  by  young  heirs.)  and  marriage-brocage  bonds;  and  will  not 
suffer  any  advantage  to  be  taken  of  the  extravagance  and  want  of  judg- 
ment, ill  the  one  case,  and  of  the  strong  bias  to  obtain  what  is  desired  in 
the  other.  The  only  difficulty  that  arose  with  me  was,  whether  the  de- 
fendant had  any  share  himself  in  the  transaction?  and  that  where  fraud 
is  pretended  it  must  be  fully  proved.  Here  indeed  the  husband  was  not 
present  when  the  bond  was  executed;  but  still,  I  think,  there  is  sufficient 
ground  for  relief:  for,  here  the  wife  was  party  to  all  the  transactions  in 
searching  registers,  &c.  The  contract  for  the  bond  was  for  their  joint 
service;  and  though  she  did  not  press  for  the  bond,  yet  she  pressed  for 
what  worked  more  strongly,  viz.,  the  repayment  of  the  money  which 
she  and  her  husband  had  lain  out  at  the  time  that  he  was  not  worth  a 
shilling,  and  in  the  midst  of  the  pursuit  of  his  cause:  and  when  this 
comes  to  be  coupled  with  that  other  saying  of  her's,  That  she  would  not 
trust  to  his  generosity,  hut  hind  him  as  fast  as  pen,  ink  and  paper  could 
hind  him,  it  makes  it  plain  that  it  was  obtained  of  the  plaintiff  when 
under  fo?'ce  and  necessity;  the  pressing  for  the  repayment  being  almost 
as  strong  as  if  she  had  actually  required  the  bond. 

And  so  decreed  the  bond  to  stand  as  a  security  only  for  so  much  as 
had  been  actually  laid  out  with  interest ;  and  left  the  defendant  at  liberty 
to  bring  his  quantum  meruit  at  law  for  what  he  deserved  for  his 
pain  and  trouble.  Reg.  Lib.  1734.  fol.  289.  414  S.  C. 


NICHOLLS  V.  NICHOLLS. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1737. 

[1  AtTcyns  409.] 

Though  a  man  is  arrested  by  due  process  at  law,  if  a  wrong  use 
is  made  of  it  against  the  person  under  such  arrest,  by  obliging  him  to 
execute  a  conveyance  which  was  never  under  consideration  before, 
this  Court  will  construe  it  a  duress,  and  relieve  against  a  conveyance 
executed  under  such  circumstances. 


482  NEILSON  v.  McDONALD  et  al.  [part  i. 


NEiLSON  V.  Mcdonald  et  al. 

In    the    Court    of    Chancery,  of    New    York,    before    Chancellor 

Kent,  1822. 

[6  Johnson's  Chancery,  201.] 

The  Chancellor  [Kent].  Before  I  enter  on  the  discussion  of  the 
merits  of  this  case  I  must  dispose  of  a  preliminary  question  respecting' 
the  competency  of  the  testimony  of  the  defendants  G.  and  L.,  who  were 
examined  as  witnesses  for  their  co-defendants,  saving  all  just  exceptions.' 

In  the  examination  of  the  merits  the  testimony  of  the  two  defendants 
does  not  appear  materially  to  alter  or  affect  the  conclusions  which  follow 
necessarily  from  a  review  of  the  pleadings  and  proofs. 

The  sale  complained  of  was  very  evidently  held  and  conducted  by 
concert  among  all  the  defendants,  and  the  object  of  the  combination 
was  to  enable  the  defendants  McD.  and  E.  to  buy  in  the  property  of  the 
plaintiff  at  an  enormous  sacrifice  of  it,  in  order  to  indemnify  themselves 
for  the  hazard  or  the  loss  of  their  debts  against  an  insolvent  son  of  the 
plaintiff,  or  else  to  coerce  the  plaintiff  by  these  means  to  assume  those 
debts  of  his  son.  Either  motive  was  unconscientious  and  one  which  the 
law  will  not  recognize  and  sanction.  The  defendants  disclaim  any  such 
combination,  but  the  facts  admitted  and  proved  do,  in  ray  judgment,  dis- 
credit their  denial.  The  defendant  McD.,  who  was  the  chief  author 
of  the  transaction,  and  the  most  deeply  interested  in  the  success  of  the 
plot,  admits  in  his  answer  that  "  he  did  require  payment  in  specie  at 
the  sale,  with  the  view  of  making  advantageous  purchases  of  property  at 
the  sale,  in  the  hope  of  thereby  saving  a  portion  of  the  large  amount 
justly  due  him  from  the  son  of  the  plaintiff."  The  defendant  G.,  who 
was  bound  to  have  exercised  a  sound  discretion,  according  to  his  own 
judgment,  in  the  time,  mode,  and  terms  of  sale,  admits  that  when  the 
plaintiff  asked  for  a  postponement  of  the  sale  he  replied  "  that  he  should 
follow  the  directions  of  McD.,  the  plaintiff  in  the  execution,  and  proceed 
to  sell  " ;  and  "  that  before  the  sale  commenced  W.  McD.  informed  him 
that  he  would  require  payment  from  him  in  specie,  and  that  G.  then 
declared  that  he  should  sell  the  property  for  ready  pay  in  specie."  The 
defendant  L.,  who  disclaims  in  his  answer  of  having  an  interest  in  the 
execution  under  which  the  sale  was  made,  and  all  concert  and  combina- 
tion in  the  sale,  admits  that  he  purchased  a  number  of  articles,  such  as 
three  pleasure  sleighs,  a  riding  chair,  a  wagon  and  harness,  and  a  quan- 
tity of  corn  and  hay,  for  very  small  prices,  which  he  states,  to  the  extent 
of  $25;  and  that  all  the  purchasers  except  McD.  and  him  had  been 
required  to  make  payment  in  specie,  and  that  upon  the  settlement  be- 
tween the  plaintiff  and  McD.  he  consented  to  give  up  what  he  purchased; 

'  So  mucli  of  tlic  ojiiiiion  us  relates  to  this  question  has  been  omitted. 


CHAP,  v.]  NEILSON  V.  McDonald  et  al.  483 

and  yet  he  says  there  was  no  combination !  So  the  defendant  E.  admits 
in  his  answer  that  he  attended  the  sale,  "  in  the  hope  of  making  ad- 
vantageous purchases  thereat,  and  of  thereby  saving  his  demand  against 
the  son  of  the  plaintiff,  or  some  portion  thereof."  It  is  in  proof  that  the 
defendant  E.  came  to  the  sale  prepared  with  specie  in  his  pocket;  and  he 
gave  up  his  purchases  after  the  plaintiff  had  assumed  his  sou's  debt  to 
him ;  and  yet  he  also  denies  all  concert  and  combination ! 

The  deputy  sheriff,  G.,  plainly  lent  himself  to  be  the  agent  of  McD. 
in  this  scene  of  oppression,  and  he  is  justly  censurable  for  the  abuse  of 
his  discretion  as  a  public  officer,  and  by  an  unwarrantable  use  of  his 
process,  for  the  purpose  of  giving  effect  to  this  unlawful  combination. 
The  case,  under  all  its  circumstances,  strikes  me  as  a  grievous  instance 
of  the  abuse  of  power,  for  the  purpose  of  oppression  and  extortion. 

To  give  a  just  view  of  the  case  it  will  only  be  necessary  to  state  a 
few  of  the  prominent  facts. 

The  plaintiff  was  a  man  of  large  real  and  personal  estate,  to  the 
amount  of  from  ten  to  seventeen  thousand  dollars,  according  to  different 
estimates.  This  fact  was  of  public  notoriety,  and  well  known  to  the 
defendants.  The  forced  sale  and  the  refusal  of  delay,  and  the  demand 
of  specie,  were  unmitigated  acts  of  severity  for  the  sole  purpose  of  ex- 
tortion. The  execution  was  for  $480.83,  and  it  was  levied  while  the 
plaintiff  was  absent  at  New  York,  and  the  day  of  sale  was  fixed  at  the 
early  day  of  the  22d  of  November,  which  was  some  weeks  before  the 
return  day  of  the  execution^  The  defendant  G.  told  a  witness  (John 
Hunter)  that  his  object  was  to  seize  and  sell  the  property  of  the  plain- 
tiff as  soon  as  the  law  would  permit,  and  he  showed  the  execution  to 
the  witness,  and  mentioned  that  the  plaintiff  was  absent  at  New  York, 
and  that  he  was  afraid  he  would  be  home  before  the  sale,  and  get  an 
order  to  stay  it.  This  witness  was  a  deputy  sheriff,  and  said  that  the 
conversation  took  place  on  the  day  of  levying  the  execution.  The  de- 
fendant G.,  whose  deposition  has  been  admitted,  for  the  reasons  already 
stated,  admits  he  had  a  conversation  with  Hunter  relative  to  the  execu- 
tion and  his  proceeding  on  it,  and  undertakes  to  give,  "  as  near  as  he 
can  recollect,"  the  conversation.  He  admitted  he  told  the  witness  that 
when  the  plaintiff  directed  him  to  close  the  execution  immediately  he 
always  did  it;  and  that,  "according  to  the  best  of  his  recollection,"  he 
did  not  make  the  observation  charged  upon  him.  This  defendant  G.  is 
not  an  unexceptionable  witness,  considering  the  charges  against  him 
which  have  been  made  in  the  bill  and  proved,  and  considering  that  he 
was  testifying  under  the  influence  which  his  character  as  a  defendant, 
and  his  hazard  of  responsibility  for  costs  in  that  character,  would  natur- 
ally promote.  I  have  no  doubt  he  used  substantially  the  language  im- 
puted to  him,  and  which  marked  the  design  of  the  combination.  So, 
also,  on  the  evening  of  the  day  of  the  sale  all  the  defendants,  and  princi- 
pally McD.  and  G.,  were  engaged  in  conversation  on  the  events  of  the 
day,  and  they  said,  -in  effect,  that  they  had  brought  matters  to  bear  just 


484  NEILSON  v.  McDONALD  et  al.  [part  i. 

as  they  wished,  and  had  bought  in  the  ont-door  personal  property  of  the 
plaintiff  for  about  $200,  and  brought  him  to  a  compromise  for  the  debt 
due  from  his  son. 

At  the  sale  the  defendant  G.  resisted  all  reasonable  offers  for  delay, 
and  he  admits  that  before  the  sale  the  plaintiff'  requested  a  postpone- 
ment, and  he  said  he  should  follow  the  directions  of  McD.  A  son  of 
the  plaintiff  (John  Neilson,  Jr.)  says  that  before  the  sale  commenced  G. 
said  he  had  come  to  make  a  forced  sale  of  the  property  of  the  plaintiff, 
and  that  he  must  have  the  money  immediately  and  in  specie,  and  he 
resisted  the  offers  of  the  plaintiff  of  giving  any  security  for  a  delay  of  a 
few  hours,  or  until  the  next  day.  The  defendant  G.,  in  his  answer, 
denies  the  fact  of  this  previous  conversation;  yet  his  conduct  and 
declarations,  during  the  whole  course  of  the  day,  were  precisely  of  the 
same  character.  A  neighbor  of  the  plaintiff  (John  Walker),  of  property 
and  credit,  and  known  as  such  to  the  defendant  McD.,  purchased  for 
$61  some  articles  worth  $140,  and  he  offered  to  pay  in  current  bills  im- 
mediately, or  in  specie  the  next  day,  and  both  offers  were  rejected  by 
the  defendant  G.,  at  the  instance  of  the  defendant  McD.,  and  the  same 
articles  were  immediately  put  up  again  and  bid  off  by  the  defendant 
McD.  for  $30.  The  defendant  McD.  then  told  the  witness  lie  did  not 
dispute  his  word  or  credit,  but  he  had  then  got  the  business  so  fixed 
that  it  would  not  do  to  take  any  man's  word,  for  he  could  then  get  his 
money,  and  he  would  have  it.  Another  witness  (Jacob  Sanford)  heard 
the  plaintiff  offer  the  defendant  G.,  that  if  he  would  wait  until  the  next 
day  he  would  pay  him  in  specie,  and  give  him  satisfactory  security  for 
the  payment.  Another  witness  (R.  M.  Livingston)  remonstrated  with  the 
defendant  G.  against  the  proceedings  at  the  sale,  as  oppressive  and  un- 
just, and  contrary  to  his  duty,  and  he  repeated  to  the  defendant  G.  the 
offers  of  the  plaintiff  to  procure  the  money  in  one  hour,  or  if  specie 
was  required  to  procure  it  as  soon  as  possible  from  Waterford,  and  to 
give  any  seciirity  for  the  fulfillment  of  the  offer.  The  defendants  wholly 
disregarded  the  offer,  and  the  defendant  G.  declared  the  determination 
not  to  stay  the  sale  on  any  security  or  on  any  account,  unless  the  exe- 
cution was  immediately  paid  in  specie.  In  the  evening,  after  the  sale, 
either  the  defendant  G.,  or  McD.,  in  the  presence  of  the  other,  said,  in 
the  hearing  of  the  witness  (Walter  Broughton),  that  the  plaintiff  wished 
to  stop  the  sale  to  get  an  opportunity  to  procure  the  money,  but  that 
McD.  had  directed  the  sale  to  proceed,  declaring  "he  must  be  a  Turk 
that  day." 

Property  to  the  value  of  $1,800  or  $2,000  was  sold  for  less  than  $300; 
and  about  three  o'clock  in  the  afternoon,  when  all  the  out-door  prop- 
erty of  the  plaintiff  had  ])een  swept  off,  and  the  defendant  G.,  with  his 
coadjutors,  was  about  to  7)roceed  to  sell  the  furniture  within  the  house, 
the  friends  of  the  plaintiff,  to  save  his  family  from  distress  and  him  from 
ruin,  pressed  him  loudly  to  come  to  terms  of  accommodation.  He  did 
so,  and  the  defendant  McD.  extorted  a  bond  and  mortgage  from  him 


CHAP,  v.]  NEILSON  V.  McDONALD  et  al.  485 

for  $2,500,  covering  not  only  tlie  ainount  of  tlio  execution,  but  nearly 
$2,000  for  demands  which  the  defendant  McD.  had  against  a  son  of  the 
plaintiff. 

A  decisive  proof  of  the  concert  with  which  the  three  defendants, 
McD.,  L.,  and  E.,  acted  at  the  sale,  and  of  the  unjust  and  oppressive 
design  with  which  they  were  actuated,  is  derived  from  the  fact  that  upon 
the  settlement  all  those  defendants  readily  surrendered  up  the  property 
which  they  had  purchased. 

It  is  perfectly  apparent  that  this  settlement,  and  the  giving  of  the 
bond  and  mortgage  and  note,  was  not  a  free  and  voluntary  act  of  the 
plaintiff,  but  that  he  was  coerced  into  it  by  the  distress  under  which  he 
labored,  from  the  severe  conduct  of  the  officer,  and  the  ruin  that  was 
overwhelming  him.  There  was  no  time  given  for  the  parties  to  cool 
and  reflect,  nor  for  the  mind  of  the  plaintiff  to  be  relieved  from  the 
terror  of  the  proceeding.  The  settlement  was  made  dum  fervet  opus, 
and  to  talk  of  a  bond  and  mortgage  being  freely  given,  while  the  victim 
lay  bleeding  at  the  spoiler's  feet,  is  absurd.  Such  abuse  of  process  is 
not  to  be  tolerated.  It  would  bring  disgrace  upon  the  administration 
of  justice.  Nothing  can  be  more  injurious  to  public  morals,  or  excite 
greater  alarm  in  the  minds  of  the  people,  than  to  suffer  the  process  of 
law  to  be  made  the  instrument  of  extortion.  It  cannot  be  doubted  that 
this  court  ought  to  afford  ample  redress  in  such  a  case,  and  the  relief 
.sought  is  conformable  to  the  established  principles  of  equity,  and  within 
the  undoubted  and  indispensable  jurisdiction  of  the  court. 

In  Proof  V.  Hines,  Cases  temp.  Talbot  111,  a  bond  was  obtained,  not 
purely  voluntarily,  but  under  necessity.  Advantage  was  taken  of  the 
party's  circumstances  and  distress,  and  the  Chancellor  ordered  the  bond 
to  stand  as  a  security  only  for  what  was  truly  due  at  the  time.  So,  in 
Gould  V.  Okeden,  3  Bro.  P.  C.  560,  a  conveyance  obtained  by  taking  an 
unreasonable  advantage  of  the  party's  distress,  ignorance,  and  depend- 
ence, was  ordered  to  stand  as  a  security  for  what  was  bona  fide  due.  The 
same  doctrine  was  declared  in  Kendrick  v.  Hudson,  6  Bro.  P.  C.  614, 
and  in  Thornhill  v.  Evans,  2  Atk.  330.  In  the  latter  case  Lord  Hard- 
wiCKE  set  aside  a  deed  obtained  by  fraud  and  imposition,  and  declared 
that  where  there  was  an  act  of  extortion  the  court  would  decree  the  party 
to  refund.  The  opinion  of  the  Chancellor  in  Nicholls  v.  Nicholls,  1 
Atk.  409,  is  much  in  point.  He  said  that  though  a  man  be  arrested  by 
due  process  of  law,  yet  if  a  wrong  use  be  made  of  the  arrest  by  obliging 
him  to  execute  a  conveyance  which  was  never  under  consideration  before, 
the  court  would  construe  it  a  duress,  and  relieve  him. 

The  cases  which  have  been  mentioned  are  only  familiar  illustrations 
of  the  ordinary  doctrine  and  practice  of  the  court. 

The  conduct  of  the  plaintiff  in  reference  to  other  and  prior  transac- 
tions has  nothing  to  do  with  this  act,  and  forms  no  justification  or  ex- 
cuse for  it.  The  execution  itself,  which  was  so  misapplied,  was  the 
result  of  a  replevin  suit  mentioned  in  the  proofs,  and  embraced  all  the 


486  FULTON  v.  LOFTIS  [part  i. 

claims  of  the  defendant  McD.  in  relation  to  it.  If  the  plaintiff  was  ac- 
countable to  that  defendant  for  the  proceeds  of  the  timber,  of  which  so 
much  has  been  said  in.  the  case,  the  defendant  McD.  had  his  remedy  by- 
suit,  in  the  regular  course  of  justice.  It  is  altogether  inadmissible  to 
receive  any  counter-claim  or  demand,  by  way  of  set-off,  against  the 
right  of  the  plaintiff,  resting  in  tort,  and  founded  on  the  illegal  combina- 
tion, the  abuse  of  process,  and  the  oppression  of  which  he  has  been 
made  the  victim.  The  plaintiff  was  not  liable  for  the  debts  of  his  son, 
and  the  pretense  that  the  plaintiff  voluntarily  undertook  to  discharge 
those  debts  with  the  anticipated  portion  of  his  son's  share,  in  expec- 
tancy of  the  paternal  estate,  is  a  very  lame  pretext  for  the  extortion, 
and  is  no  alleviation  of  the  proceeding.  There  is  no  rule  of  law 
founded  on  sounder  principles  of  policy  or  more  conducive  to  the 
safety  of  private  right  than  that  which  forbids  one  tort  or  injury  to  be 
set  off  by  way  of  compensation  for  another.  It  would  be  allowing 
parties  to  avenge  with  their  own  hands  their  own  injuries,  and  would  in 
its  consequences  recall  the  tumult  and  violence  of  the  barbarous  ages. 
In  the  case  of  spoliation  under  the  Eoman  law  no  compensation  was 
allowed  to  be  opposed  against  the  demand  for  restitution,  according  to 
the  maxim  of  the  civil  and  which  is  that  of  the  common  law:  Spoli- 
atus  ante  omnia  restituendus.  Pothier  Trait,  des  Ob.  s.  589;  2  Inst.  714. 
It  is  admitted  that  the  plaintiff  has  made  a  tender  of  the  debt  and 
costs  due  on  the  execution,  and  offered  to  deliver  up  the  assignment  of 
the  judgment  and  the  note  to  the  defendant  McD.,  and  has  demanded 
a  return  of  his  bond  and  mortgage.^ 


FULTON  V.  LOFTIS. 

In  the  Supreme  Court  of  North  Carolina,  1869. 

[63  North  Carolina  393.] 

Bill,  set  down  for  hearing  upoai  pleadings  and  proofs,  at  Spring 
Term  1868  of  the  Court  of  Equity  for  Buncombe,  and  by  consent 
transferred  to  this  Court. 

The  plaintiff  alleged,  that  in  1859,  he  contracted  to  sell  a  tract  of 
land  to  the  defendant,  at  the  price  of  $412.50,  for  which  he  took  two 
notes  of  the  defendant,  payable  in  one  and  two  years,  and  executed 
a  bond  to  make  title  when  the  purchase  money  was  paid,  and  that  the 

'  Tlift  Ifarncd  Clinnffllor  tlioreforo  docliirod  tlie  sale  oppressive  and  illegal; 
llie  hfind  and  mortfjajie,  as  liaving  heen  unduly  and  fraudulently  obtained,  were 
directed  to  stand  only  for  tlie  ajnount  due  on  the  exeention.  with  interest  and 
eosts,  and  on  payiiient  of  that  amount,  to  I)e  delivered  up  and  cancelled. 


CHAP,  v.]  EAU  V.  CATHERINE  B.  VON  ZEDLITZ  487 

defendant  was  put  into  possession;  that  afterwards,  in  1865,  the  de- 
fendant, on  the  pretence  of  calculating  the  interest,  induced  the  plaintiff 
to  let  him  take  the  notes  into  his  hands,  whereupon  he  put  them  into  his 
pocket,  pulled  out  a  pistol,  and  walked  off,  telling  the  plaintiff  not 
to  follow  him.  The  bill  admits  a  payment  of  $100  in  Confederate 
notes,  in  1863. 

The  prayer  is  for  a  decree  rescinding  the  contract;  an  account  of 
the  rents  and  profits;  and  that  the  defendant  be  also  decreed  to  give 
up  possession. 

Pearson,  C.  J.  The  plaintiff  has  misconceived  his  remedy.  When 
a  contract  is  obtained  by  fraud  or  duress,  a  Court  of  Equity  will  entertain 
a  bill  for  its  rescission ;  but  the  plaintiff  must  allege  that  he  was  induced 
to  enter  into  the  contract,  by  reason  of  such  fraud  or  duress.  A  bill 
for  recission  on  the  ground  of  fraud  or  duress  perpetrated  after  the 
contract  is  made,  is  one  of  the  first  impression,  and  there  is  no  principle 
upon  which  it  can  be  maintained.  The  question  is  too  plain  to  allow  of 
discussion:     Addington  v.  McDonnell,  at  this  term. 

The  plaintiff  having  the  legal  title,  may  take  possession,  and  thus 
force  the  defendant  to  file  a  bill  for  a  specific  performance,  when 
the  plaintiff  may  rely  upon  the  alleged  fraud,  or  duress,  as  a  ground  to 
induce  the  Court  to  refuse  to  entertain  the  bill;  or  the  plaintiff  may  file 
a  bill  for  specific  performance,  and  ask  for  a  reference  as  to  the  amount 
of  the  purchase-money  remaining  unpaid,  and  thus  bring  up  the  question, 
as  to  the  manner  in  which  the  defendant  obtained  possession  of  the 
notes,  and  thus  the  controversy  may  be  settled.  But  as  we  have  seen,  the 
idea  of  a  decree  for  recission,  for  matters  occurring  six  years  after 
the  contract  was  made,  and  after  it  had  been  in  part  performed,  is  out 
of  the  question. 

Let  the  bill  be  dismissed,  but  without  costs  as  to  the  defendant  Loftis. 

Per  Curiam.  Bill  dismissed. 


RAU  V.  CATHERINE  B.  VON  ZEDLITZ  and  Others. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1882. 

[132  Massachusetts,  164.] 

Exdicott,  J.  This  is  a  bill  in  equity,  under  the  Gen.  Sts.  c.  113,  §  2,  cl. 
11,  brought  against  the  Baron  and  Baroness  Von  Zedlitz  and  the  trustee 
under  her  marriage  settlement.  The  plaintiff  alleges  therein  that  the 
Baroness  is  indebted  to  him  upon  two  drafts,  accepted  by  her  at  Dresd;m, 
in  Saxony,  on  the  day  previous  to  her  marriage,  which  are  now  due  and 
unpaid,  and    he  seeks  to  obtain  a  decree  that  the  trustee  of  the  marriage 


488  KAU  V.  CATHEKINE  B.  VON  ZEDLITZ  [part  i. 

settlement  shall  apply  to  the  payment  of  the  drafts  so  much  of  the  trust 
fund  as  is  necessary. 

The  defense  is  that  the  acceptance  of  the  drafts  was  forced  upon, 
the  Baroness  by  threats  and  undue  influence,  and  is  therefore  invalid 
and  cannot  be  enforced  in  a  court  of  equity,  and  that,  under  the  pro- 
visions of  the  marriage  settlement,  the  fund  cannot  be  applied  to  the 
payment  of  these  drafts. 

As  the  case  is  presented  to  us,  no  question  arises  upon  the  second 
branch  of  the  defense.  The  presiding  judge  heard  the  case  on  the  evi- 
dence and  dismissed  the  bill  on  the  ground  that  the  acceptance  of  the 
drafts  was  obtained  by  threats  and  undue  influence;  from  his  decision 
the  plaintiff  appeals,  and  the  evidence  upon  which  the  finding  is  based 
is  reported. 

Upon  a  careful  examination  of  the  evidence,  we  cannot  say  that  the 
decision  upon  the  question  of  undue  influence  is  erroneous.  The  record 
is  voluminous,  but  the  principal  and  material  facts  are  as  follows :  The 
Baroness  Von  Zedlitz,  whose  maiden  name  was  Kelscy,  and  who  was  a 
native  of  this  commonwealth,  was  married  on  April  12,  1877.  While 
traveling  in  Europe  she  became  engaged,  in  December,  1876,  to  the 
Baron  Von  Zedlitz.  She  possessed  considerable  property  in  her  own 
right,  and  a  marriage  settlement  was  prepared  here  at  her  request  and 
sent  to  Dresden  the  following  April.  It  was  executed  by  her  and  her 
intended  husband  on  April  10,  two  days  before  her  marriage.  The 
Baron  Von  Zedlitz  was  at  that  time  largely  indebted  to  the  plaintiff,  and 
there  was  evidence  that  some  of  the  money  was  advanced  to  the  Baron 
upon  the  promise  by  him  to  repay  the  plaintiff  on  his  marriage  with 
Miss  Kelsey,  whom  he  represented  to  be  possessed  of  a  large  fortune. 
On  April  9  the  plaintiff  went  to  Dresden  for  the  purpose  of  obtaining 
from  Miss  Kelsey  payment  of  his  debt.  Being  informed  of  the  mar- 
riage settlement,  he  endeavored  without  success  to  persuade  the  Baron 
to  prevent  its  execution.  On  the  following  day,  which  was  April  11, 
Miss  Kelsey  was  induced  to  go  to  the  office  of  a  notary  public  to  make 
some  arrangement  about  a  sum  of  money  which  the  Baron's  mother, 
^Irs.  Von  Winning,  informed  her  the  Baron  owed  to  the  plaintiff.  She 
went,  accompanied  by  the  Baron  and  his  mother,  about  five  o'clock  in 
the  afternoon,  and  found  there  the  notary,  the  plaintiff,  another  creditor 
of  the  Baron  by  the  name  of  Muller,  and  Mr.  Von  Winning.  An  inter- 
preter was  also  present  during  the  interview,  which  continued  till  eight 
o'clock.  And  the  evidence  reported  relates  chiefly  to  what  then  took 
place. 

She  was  told  that  the  Baron  was  indebted  to  the  plaintiff  in  the  sum 
of  1.5,000  marks,  and  she  was  requested  to  sign  the  drafts  to  that  amount, 
copies  of  which  are  annexed  to  the  bill.  Tt  appears  in  the  evidence 
that  she  refused,  saying  that  it  was  impossible;  that  she  had  no  money, 
and  that  she  had  parted  with  all  her  pro])erty.  She  was  solicited  again 
and  again  to  sign  the;  drafts  and  was  told  by  Mrs.  Von  Winning  that. 


CHAP,  v.]  KAU  V.  CATHERINE  B.  VON  ZEDLITZ  489 

if  she  did  not,  disagreeable  consequences  would  follow ;  that,  unless 
the  drafts  were  signed,  the  marriage  on  tlie  following  day  would  not  take 
place;  that  the  police  would  prevent  their  leaving  their  dwelling  or 
would  stop  them  at  the  door  of  the  church,  and  that  the  whole  affair 
would  be  published  in  the  newspapers.  It  also  appears  from  the  testi- 
mony of  the  plaintiff  that  he  intended  to  have  the  Baron  arrested  unless 
Miss  Kelsey  paid  the  debt.  She  desired  to  leave  the  room,  and  was 
told  that  she  could  not  go  until  the  matter  was  arranged.  Upon  the 
suggestion  being  made  that  Mr.  Lehman,  a  lawyer  who  had  been  em- 
liloyed  in  connection  with  the  settlement,  might  be  sent  for,  it  was 
opposed  by  the  plaintiff. 

The  plaintiff  could  not  speak  English,  and  Miss  Kelsey  could  not 
speak  German,  and  Mrs.  Von  Winning,  who  spoke  English,  appears  to 
have  been  the  medium  of  communication  between  them,  and  was  passing 
from  one  to  the  other  during  the  interview.  There  was  evidence  that  a 
portion  of  the  money  lent  by  the  plaintiff  to  the  Baron  had  been  re- 
ceived by  her,  and  it  is  evident  that  she  was  very  desirous  that  Miss 
Kelsey  should  sign  the  drafts;  and  the  presiding  judge  might  well  find, 
upon  the  evidence  reported,  that  she  was  acting  in  behalf  of  the  plain- 
tiff, or  in  collusion  with  him,  in  persuading  Miss  Kelsey  to  sign,  before 
the  magistrate,  the  acceptances  and  other  documents,  among  them  a 
protocol,  so  called. 

During  this  time  Miss  Kelsey  was  very  much  excited,  and  at  the  last 
of  it  was  in  tears,  and  there  was  evidence  that  she  fainted.  She  stated 
in  her  testimony:  "I  think  for  a  moment  or  two  I  must  have  lost  con- 
sciousness, for  the  first  thing  I  knew  the  Baron  was  holding  me  at  an 
open  window  and  somebody  gave  me  a  glass  of  water" ;  and  again,  "I 
was  so  worn  out  and  tired  and  overcome  that  just  as  soon  as  I  recov- 
ered conscioi:sness,  which  I  lost,  Mrs.  Von  Winning  came  up  to  nie  and 
said,  'Now  you  had  better  sign,'  and  I  thought  at  that  time  that  I  would 
do  almost  anything  she  asked  me,  and  so  I  consented."  She  then 
signed  the  acknowledgment  of  the  indebtedness  of  the  Baron  and  the 
agreement  that  she  would  assume  and  pay  it,  and  also  signed  the  drafts. 
This  was  near  eight  o'clock.  While  in  the  room  she  paid  some  money 
to  Rau  and  also  to  Muller,  and  there  was  a  violent  altercation  between 
the  Baron  and  Muller,  during  which  the  Baron  seized  Muller  and 
shook  him.  It  appears  that  Miss  Kelsey  was  of  a  nervous  and 
excitable  temperament,  and  not  familiar  with  business  or  the  care  of 
property. 

There  was  conflicting  evidence  in  regard  to  what  took  place  before  the 
notary.  But  we  are  of  opinion  that  the  presiding  judge,  before  whom 
the  case  was  heard,  and  who  saw  the  principal  witnesses,  namely,  the 
plaintiff  and  the  Baron  and  Baroness,  might  well  find  that  the  accept- 
ance of  the  drafts  was  forced  upon  Miss  Kelsey  by  threats  and  undue 
influence.  The  contract  she  entered  into  was  without  consideration, 
and  it  was  purely  a  question  of  fact  whether  she  was  induced  to  sign  it 


490  RAU  V.  CATHERINE  B.  VON  ZEDLITZ  [part  i. 

by  threats  and  undue  persuasions,  and  through  fear  that  her  marriage 
would  be  prevented.  This  in  equity  will  constitute  a  good  defense  to 
the  bill.  Upon  an  appeal  from  a  decree  of  a  single  justice,  on  a  ques- 
tion of  fact,  the  evidence  being  reported,  the  full  court  will  not  reverse 
the  decision,  unless  it  appears  clearly  to  be  erroneous.  Reed  v.  Reed, 
114  Mass.  372;  Montgomery  v.  Pickering,  116  Mass.  227.  See  also  Singer 
Manuf.  Co.  V.  Long,  18  Ch.  D.  39.5,  427. 

A  young  woman,  upon  the  eve  of  her  marriage  and  in  a  strange  coun- 
try, requested  and  urged  to  assume  and  pay  the  debts  of  her  intended 
husband,  being  led  to  believe  if  she  does  not  comply  with  the  solicita- 
tions pressed  upon  her  that  her  marriage  may  be  prevented,  her  intend- 
ed husband  arrested,  and  the  whole  affair  published  in  the  newspapers, 
certainly  is  the  object  of  undue  and  improper  influence,  and  in  yielding 
to  it  at  last,  after  long  resistance,  and  without  independent  advice,  can- 
not be  said  to  be  acting  as  a  free  and  voluntary  agent,  for  the  circum- 
stances preclude  the  exercise  of  free  and  deliberate  judgment.  The 
contract  which  she  assumed  was  utterly  without  consideration;  and  it 
was  said  by  Lord  Westbury,  in  Williams  v.  Bayley,  L.  H.,  1  R.  L.  200, 
218,  "A  contract  to  give  security  for  the  debt  of  another,  which  is  a  con- 
tract without  consideration,  is,  above  all  things,  a  contract  that  should 
be  based  upon  the  free  and  voluntary  agency  of  the  individual  who  enters 
into  it.  But  it  is  clear  that  the  power  of  considering  whether  he  ought 
to  do  it  or  not,  whether  it  is  prudent  to  do  it  or  not,  is  altogether  taken 
away  from  a  father  who  is  brought  into  the  situation  of  either  refusing 
and  leaving  his  son  in  that  perilous  condition  or  taking  on  himself  the 
amount  of  that  civil  obligation."  In  that  case  the  threat  was  to  prose- 
cute the  son  for  forgery. 

The  case  of  Ivempson  v.  Ashbee,  L.  R.,  10  Ch-.  15,  resembles  the  case 
at  bar.  The  plaintiff,  a  young  lady  living  with  her  step-father,  at  his 
solicitation,  soon  after  she  was  of  age  became  surety  on  his  bond  to  pay 
a  debt,  payable  to  the  defendant  at  the  end  of  six  years.  The  defendant, 
on  the  maturity  of  the  bond,  brought  an  action  and  recovered  judgment 
against  the  step-father,  and  the  plaintiff,  who  still  lived  with  her  step- 
father, was  induced  by  him  to  execute  a  second  bond  as  surety  to  pay  the 
judgment  and  costs.  Both  bonds  were  prepared  by  the  step-father's 
solicitor,  and  without  independent  advice.  The  defendant  brought  an 
action  against  the  plaintiff  on  the  bonds.  On  a  bill  brought  by  her  both 
bonds  were  set  aside  as  against  her,  and  it  was  held  that  the  second  bond 
was  connected  with  the  first,  and  that,  as  there  was  no  proof  that  she 
was  aware  of  the  invalidity  of  the  first  bond,  the  second  was  no  con- 
firmation. Dent  V.  Bennett,  4  M.  &  C.  269;  Lyon  v.  Home,  L.  R.  6  Eq. 
655;  Eadie  v.  Slimmon,  26  N.  Y.  9;  Baldwin  v.  Parker,  99  Mass.  79; 
Central  Bank  v.  Copcbuid,  IS  Md.  305. 

The  plaintiff  conteiids  that  by  her  subsequent  acts  she  confirmed  the 
transaction.  While  living  in  Germany  after  her  marriage,  the  plaintiff 
pressed  for  payinont  and  throafened  legal  proceedings,  and  she  paid  to 


CHAP,  v.]         RAU  V.  CATHERINE  B.  VON  ZEDLITZ  491 

him  money  on  account  of  the  drafts,  and  wrote  letters  to  her  trustee, 
requesting  him  to  send  her  money  for  that  purpose.  But  to  constitute 
a  confirmation  the  acts  must  have  been  done  with  that  intention  by  one 
who  was  not  under  the  influence  of  the  previous  transaction  (Mont- 
gomery V.  Pickering,  IIG  Mass.  227,  and  cases  cited),  and  with  a  knowl- 
edge of  its  invalidity  (Kempson  v.  Ashbee,  uhi  supra).  She  was  ignorant 
of  her  rights  at  that  time,  and  supposed  she  was  compelled  to  pay  by 
reason  of  the  obligations  she  had  entered  into. 

It  is  also  contended  by  the  plaintiff  that  his  forbearance  to  sue  is  a 
sufficient  consideration  for  her  acceptance  of  the  drafts.  But  this  prin- 
ciple of  law  has  no  application  here.  His  forbearance  to  sue  cannot 
prevent  her  from  avoiding  the  contract  on  the  ground  that  he  exercised 
fraud  or  undue  influence  in  obtaining  it.  If  it  were  so,  a  party  fraudu- 
lently or  unduly  persuaded  to  be  responsible  for  the  debt  of  another 
could  never,  after  ascertaining  his  rights,  rescind  the  contract,  if  the 
party  guilty  of  the  fraud  or  undue  influence  forbore  to  sue  tbe  principal. 
A  party  thus  guilty  cannot  make  an  illegal  contract  binding  by  any  act 
of  conduct  of  his.  If  he  had  forborne  to  sue,  or  anything  had  inter- 
vened to  his  injury,  after  the  party  defrauded  had  ascertained  the  fraud, 
a  different  case  would  be  presented.  But  of  this  there  is  no  evidence  in 
this  case. 

In  this  connection  the  plaintiff  further  contends  that  his  forbearance 
to  sue  is  not  all ;  that  "Miss  Kelsey  herself  received  direct  and  lasting 
benefits,  a  husband  and  a  title,  considerations  to  be  enjoyed  forever,  and 
which  to  her  were  beyond  the  possibility  of  any  pecuniary  measure- 
ment." In  support  of  this  position  the  language  of  Mr.  Justice  Wilde, 
in  Walker  v.  Sherman,  11  Met.  170,  172,  is  quoted,  that  "The  slightest 
damage  to  the  plaintiff  or  benefit  to  the  defendant  is  a  sufficient  consid- 
eration to  support  his  promise."  But  the  concluding  portion  of  the  sen- 
tence, namely,  "there  being  no  fraud  practiced  upon  him  in  obtaining 
his  acceptance  of  the  order,"  would  seem,  to  cover  the  case  at  bar.  The 
inference  from  the  plaintiff's  argument  is  that  he  would  have  prevented 
the  marriage  unless  she  had  signed  the  acceptance,  or,  as  stated  by  the 
counsel  for  the  defendants,  "the  argument  for  the  plaintiff  is,  in  effect, 
that  she  cannot  rescind  because  she  is  married,  and  the  plaintiff  can  no 
longer  prevent  her  marriage."  It  is  sufficient  to  say  that  the  fact  of 
lier  marriage  cannot  furnish  a  legal  consideration  for  her  acceptance  of 
the  drafts,  if  she  was  fraudulently  or  unduly  influenced  to  accept  the 
same. 

We  have  no  doubt  that  where  a  contract  is  sought  to  be  enforced  in 
equity,  undue  influence  niay  be  set  up  by  answer  as  a  defense,  though 
a  cross-bill  would  be  necessary  if  the  defendant  seeks  relief  by  the  de- 
livery up  or  the  concellation  of  the  contract.  It  was  therefore  open  to 
the  defendant  to  set  up  the  undue  influence  by  answer,  and,  so  far  as 
this  case  is  concerned,  it  was  not  necessary  to  file  a  cross-bill,  as  she  does 
not  seek   the  deliv^ery  or  the  cancellation   of  the  drafts.     Andrews   v. 


492  EAU  V.  CATHERINE  B.  VON  ZEDLITZ  [part  i. 

Gilman,  122  Mass.  471;  Richards  v.  Todd,  127  Mass.  167;  2  Dan.  Cli. 
Pract.  4th.  ed.,  1550. 

It  is  conceded  that  in  the  absence  of  any  evidence  of  the  law  of  Sax- 
ony, the  question  of  duress  t»r  undue  influence  is  to  be  determined  by 
the  law  of  this  commonwealth.  But  it  is  argued  that  although  this  is  a 
bill  in  equity,  yet  the  rule  at  law  is  to  be  followed  in  determining  the 
validity  of  the  debt,  and  the  question  is  whether  there  was  duress  at  law, 
and  not  whether  there  was  undue  influence  according  to  the  rule  in 
equity;  although  the  liability  of  the  trust  fund  to  satisfy  such  debt  is  to 
be  determined  as  in  equity.  The  plaintiff  says  he  was  forced  into  equity 
because  the  property  has  been  placed  in  trust,  and  therefore  the  defend- 
ant cannot  rely  on  an  equitable  defense.  But  the  plaintiff  was  not 
forced  into  equity  to  prove  his  debt;  he  could  have  established  his  debt 
at  law,  and  then  have  sought  in  equity  to  charge  the  trust  fund  with  its 
payment.  Having  come  into  a  court  of  equity  voluntarily,  with  his 
whole  case,  asking  to  be  allowed  to  prove  his  debt  and  thereby  obtain 
equitable  relief,  the  defenses  in  equity  to  his  demand  are  open  to  the 
defendant.  Whenever  a  plaintiff  seeks  to  enforce  a  contract  in  equity, 
an  equitable  defense  may  be  set  up,  though  the  remedy  may  not  be  so 
complete  as  by  cross-bill  seeking  to  set  the  contract  aside.  If  the  plain- 
tiff had  sued  the  drafts,  an  injunction  might  have  issued  in  equity  to  re- 
strain the  further  prosecution  of  his  suit,  and  equitable  relief  could  have 
been  obtained  and  the  drafts  set  aside,  so  far  as  the  female  defendant  is 
concerned,  as  in  Kempson  v.  Ashbee,  uhi  supra. 

Nor  do  the  rules  applicable  to  creditors'  bills  govern  this  case.  Under 
such  a  bill  strictly  so  called  an  injunction  may  issue  against  all  other 
creditors  from  suing  at  law  or  prosecuting  suits,  except  under  the  direc- 
tion of  the  court  where  the  bill  is  pending.  Creditors  being  thus  forced 
into  a  court  of  equity,  it  is  said  that  the  legal  rights  of  every  creditor  and 
the  validity  of  his  debt  must  be  determined  in  equity  upon  the  same 
principles  as  it  would  be  at  law.  1  Story  Eq.  Jur.  §  549.  In  Whittaker 
V.  Wright,  2  Hare  310,  it  was  remarked  by  Vice-Chancellor  Wigram  : 
"But  nothing  would  be  more  unjust  than  that  the  court  should  restrain 
the  creditor  from  proceeding  to  enforce  his  rights  at  law,  except  upon 
the  principle  of  allowing  him  to  bring  his  legal  rights  with  him  into  the 
office  of  the  court,  which  it  substitutes  for  the  proceedings  at  law." 
^^^lether  in  such  a  case  this  defense  of  threats  and  undue  influence  could 
be  set  up  we  need  not  inquire.  This  is  not  a  creditors'  bill  brought  in 
behalf  of  all  the  creditors.  It  may  be  brought  by  a  single  creditor,  and 
the  other  creditors  cannot  be  compelled  to  come  in,  and  have  no  right 
to  come  in  and  share  with  the  plaintiff  the  benefit  obtained  by  the  suit. 
It  is  in  the  nature  of  an  equitable  trustee  jirocess,  as  distinguished  from 
a  creditors'  bill.  Pha'nix  Ins.  Co.  v.  Abbott,  127  Mass.  558;  Chapman  v. 
Banker  &  Tradesman  Publishing  Co.,  128  Mass.  478. 

Decree  affirmed  with  costs. 


CHAP,  v.]  DOLLTVER  v.  DOLLIVEK  493 

BRYANT  V.  PECK  AND  WHIPPLE  COMPANY. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1891. 
[154  Massachusetts,  4G0.] 

Holmes,  J.  According  to  the  allegations  of  the  bill,  the  plaintiff  be- 
came a  party  to  a  note  from  which  he  prays  to  be  relieved,  and  trans- 
ferred his  stock,  in  consideration  that  the  defendant  would  not  proseciite 
his  son  for  perjury,  and  under  a  threat  from  it  that  otherwise  his  son 
would  be  prosecuted.  The  transaction  was  illegal ;  Pub.  Sts.  c.  205,  §  27 ; 
Gorham  v.  Keyes,  137  Mass.  583 ;  and  if  the  parties  stood  on  an  equal 
footing,  neither  of  them  would  have  a  remedy  against  the  other.  At- 
wood  V.  Fisk,  101  Mass.  363.  But  it  is  well  recognized  that,  although 
both  parties  are  chargeable  with  knowledge  that  their  agreement  is  con- 
trary to  some  rule  of  law,  yet  if  one  of  them  acts  under  duress,  or  what 
the  law  regards  as  undue  influence  on  the  part  of  the  other,  they  do  not 
stand  on  an  equal  footing,  and  the  weaker  one  may  be  granted  affirmative 
relief.  Worcester  v.  Eaton,  11  Mass.  368,  376;  Belding  v.  Smythe,  138 
Mass.  530,  533.  It  is  settled  that  such  threats  as  are  alleged  to  have 
been  addressed  to  the  plaintiff  constitute  duress.  Harris  r.  Carmody, 
131  Mass.  51.  See  Ran  v.  Von  Zedlitz,  132  Mass.  164.  And  accordingly 
it  has  been  decided  in  other  jurisdictions,  in  cases  like  the  present, 
that  the  plaintiff  was  entitled  to  relief  in  equity.  Foley  v.  Greene,  14 
R.  I.  618;  Schooner  v.  Lissauer,  107  N.  Y.  Ill;  Williams  v.  Bayley,  L.  R. 
1  H.  L.  200;  Davies  v.  London  &  Provincial  Ins.  Co.,  8  Ch.  D.  469,  477. 
See  Sharon  v.  Gager,  46  Conn.  189;  Rau  v.  Von  Zedlitz,  132  Mass.  164, 
167-169. 

In  Atwood  V.  Fisk,  uhi  supra,  cited  as  establishing  a  different  con- 
clusion, it  seems  to  have  been  found  or  assumed  that  the  plaintiffs  had 
not  been  subject  to  any  undue  pressure,  as  the  decision  states  that  there 
was  "  no  such  inequality  in  position,  or  abuse  of  advantages,  as  to  entitle 
them  to  the  aid  of  the  court  on  the  ground  of  public  policy." 

Demurrer  overruled. 


DOLLIVER  V.  DOLLIVER. 

In  the  Supreme  Court  of  California,  1892. 
[94  California,  642.] 

Harrison,  J. — Action  for  the  rescission  of  a  contract.  The  court  below 
rendered  judgment  in  favor  of  the  plaintiff,  and  the  defendant  has  ap- 
pealed from  the  judgment,  bringing  the  case  here  upon  the  'judgment 
roll  alone. 

The  court  finds,  that  the  parties  are  husband  and  wife,  having  been 


494  DOLLIVER  v.  DOLLIVER  [part  i. 

married  in  1873,  and  that  the  plaintiff,  at  the  time  of  their  marriage, 
was  the  owner  of  certain  real  estate  as  her  separate  property,  at  that  time 
of  the  value  of  one  hundred  and  twenty-five  thousand  dollars,  and  that 
after  her  marriage  with  the  defendant  she  acquired  certain  other  prop- 
erty, which  was  also  her  separate  estate.  On  the  27th  of  August,  1885, 
the  defendant  abandoned  the  plaintiff,  and  thereafter  ceased  to  live  with 
her,  and  on  the  evening  of  that  day,  after  leaving  her,  he  caused  her  to  be 
served  at  her  residence  with  a  summons  and  copy  of  a  complaint  in  a  suit 
for  divorce,  brought  by  him  against  her.  The  court  finds  that  at  that 
time,  and  for  some  time  previously,  the  plaintiff  was  a  sufferer  from  gen- 
eral nervous  prostration,  and  that  the  abandonment  by  the  defendant, 
and  the  nature  of  the  charges  in  the  complaint  for  divorce,  caused  her 
great  agitation  and  distress  of  mind,  and  greatly  aggravated  her  bodily 
infirmity ;  and  that  while  so  distressed  in  mind  and  sick  in  body,  she  al- 
most immediately  sought  out  the  defendant  and  urged  him  to  dismiss  the 
suit  and  return  to  her;  and  that  on  the  31st  of  August  they  met  by  ap- 
pointment at  the  office  of  Mr.  A.  N.  Drown,  who  was  his  attorney,  and  to 
whom  he  introduced  the  plaintiff,  with  the  statement  that  they  had  come 
to  make  a  settlement.  At  that  interview  certain  memoranda  of  the  settle- 
ment were  prepared  by  Mr.  Drown  in  the  presence  of  both  parties,  and 
signed  by  them,  and  on  the  next  day  formal  instruments  of  settlement, 
which  in  the  mean  time  had  been  prepared  by  his  attorney,  were  exe- 
cuted by  them. 

By  these  instruments,  the  plaintiff  made  to  the  defendant  her  promis- 
sory notes,  amounting  to  thirty  thousand  dollars,  and  secured  their  pay- 
ment by  a  mortgage  upon  certain  of  her  real  estate,  and  a  memorandum 
of  agreement  was  signed  by  both  parties,  reciting  that  "all  of  the  prop- 
erty belonging  to  both  of  said  parties  has  hitherto  been  and  is  now  held 
by  Mary  \Y.  Dolliver,"  and  that  "differences  have  arisen  between  said 
parties  relating  to  such  property,  and  the  respective  rights  of  each  con- 
cerning the  same,"  and  that  "in  mutual  consideration  of  the  premises,'* 
it  was  agreed  by  them  that  the  property  that  day  conveyed  by  him  to  her 
should  be  her  separate  property,  and  that  the  property  transferred  by  her 
to  him,  together  with  the  aforesaid  promissory  notes  and  mortgage, 
should  be  his  separate  property.  It  is  for  the  rescission  of  these  agree- 
ments, and  the  restitution  of  the  plaintiff  to  the  property  so  conveyed, 
and  the  surrender  of  the  notes  and  mortgage,  that  this  action  was 
brought. 

The  court  finds  that  the  above  recitals  in  the  memorandum  of  agree- 
ment had  no  foundation  in  fact;  that  no  property  of  the  defendant  had 
been  held  by  the  plaintiff,  and  that  he  had  no  property;  that  there  had 
been,  in  point  of  fact,  no  differences  in  the  sense  assumed  in  the  memor- 
andum; that  the  claim  set  up  by  the  defendant,  and  which  the  settlement 
pur[)orted  to  adjust,  was  not  a  hona  fide  claim  on  his  part,  and  that  the 
iriemoraiidum  puri)orted  to  give  to  tlu;  plaintiff  nothing  which  was  not  in 
point  of  law  and  fact  already  hers,  and  effected  nothing  for  her  pecuniary 


CHAP,  v.]  DOLLIVER  v.  DOLLIVER  495 

advantage.  The  coui't  also  finds  that  the  abandonment  of  the  plaintiff 
"was  without  just  cause,  was  made  in  bad  faith,  and  the  suit  instituted 
by  him,  ostensibly  to  obtain  a  divorce,  was  brought  by  him  merely  to 
harass  and  vex  the  plaintiff,  and  as  a  means  of  coercing  her  into  a  sur- 
render to  him  of  a  portion  of  her  separate  estate,  and  for  no  other  pur- 
pose"; that  the  matters  set  forth  in  his  complaint  as  substantive 
grounds  for  divorce  were  untrue  in  point  of  fact,  and  known  by  the  de- 
fendant at  the  time  to  be  untrue,  and  that  the  alleviations  inserted 
1  herein  as  to  the  amounts  of  money  which  had  been  turned  over  by 
him  to  his  wife  were  not  true  in  point  of  fact,  and  that  those  amounts 
were  grossly  and  purposely  exaggerated  for  the  purpose  of  alarming  her, 
and  influencing  her  to  make  a  settlement;  that  the  plaintiff  executed 
the  instruments  in  manner  and  form  as  they  had  been  prepared  by  the 
attorney  for  the  defendant;  that  she  had  no  independent  advice  concern- 
ing them  or  their  legal  effect  and  operation,  and  did  not  in  fact  compre- 
hend their  effect  in  point  of  law  upon  her  property  rights;  that  she  was 
constrained  to  their  execution  by  considerations  of  the  immunity  she 
hoped  to  obtain  from  the  personal  disgrace  apprehended  by  her  from  the 
trial  of  the  suit  for  divorce  upon  the  charges  made  against  her  in  the 
complaint,  and  that  it  was  under  the  moral  pressure  exerted  upon  her 
by  these  various  considerations  that  she  acted  in  executing  the  said 
instruments. 

An  action  for  the  rescission  of  a  contract  may  be  maintained  when- 
ever the  consent  of  the  party  seeking  to  rescind  was  obtained  through 
any  fraud  or  undue  influence  of  the  other  party.  Civ.  Code,  sec.  1689. 
"  Undue  influence  "  is  defined  in  the  Civil  Code,  sec.  1575,  to  consist. — 
"1.  In  the  use,  by  one  in  whom  a  confidence  is  reposed  by  another,  or  who 
holds  a  real  or  apparent  authority  over  him,  of  such  confidence  or  au- 
thority for  the  purpose  of  obtaining  an  unfair  advantage  over  him; 
2.  In  taking  an  unfair  advantage  of  another's  vpeakness  of  mind;  or  3.  In 
taking  a  grossly  oppressive  and  unfair  advantage  of  another's  necessities 
or  distress."' 

The  plaintiff  and  defendant  were  husband  and  wife,  and  by  virtue  of 
that  relation  a  personal  trust  and  confidence  had  been  created  be- 
tween them,  which  imposed  upon  the  defendant  the  obligation  of  exercis- 
ing the  highest  good  faith  towards  the  plaintiff  in  any  dealings  be- 
tween them,  and  precluded  him  from  obtaining  any  advantage  over  her 
by  means  of  any  misrepresentation,  concealment,  or  adverse  pressure. 
Civ.  Code,  sec.  2228.  This  relation  and  the  obligation  arising  from  it 
were  not  destroyed  by  the  mere  fact  that  an  action  for  divorce  was  pend- 
ing between  them.  They  were  still  husband  and  wife,  and  so  long  as 
that  relation  existed  between  them,  the  law  would  not  permit  any  inquiry 
into  the  extent  of  the  trust  and  confidence  which  is  presumed  to  be 
placed  by  one  in  the  other;  nor  can  the  husband,  by  bringing  an  action 
for  divorce  against  his  wife,  divest  himself  of  the  obligations  which  are 
imposed  upon  him  by  virtue  of  such  relation. 


496  DOLLIVEE  v.  DOLLIVER  [part  i. 

The  suit  for  divorce  was  brought  by  the  husband  on  the  27th  of 
August,  under  such  circumstances  as  naturally  to  surprise  and  distress 
the  wife.  They  had  been  living  together  for  many  years  as  husband  and 
wife,  and  in  the  exercise  and  enjoyment  of  the  confidential  relations  in- 
cident thereto.  On  that  day  he  dined  at  home  with  her  and  the  family, 
together  with  an  invited  guest,  and  immediately  after  dinner  announced 
to  her  his  intention  of  abandoning  her,  and  on  the  same  evening  caused 
her  to  be  served  with  the  summons  and  complaint  in  the  suit  for  divorce. 
Instead  of  resisting  the  suit,  or  assenting  to  its  prosecution,  she  ahnost 
immediately  sought  him  out  and  urged  him  to  dismiss  the  action  and 
return  to  her.  Although  he  at  that  time  refused  to  do  this,  the  parties, 
within  four  days  after  the  commencement  of  the  action,  met  by  ap- 
pointment at  the  office  of  his  attorney  to  make  a  "settlement."  Instead 
of  insisting  that  the  plaintiff  should  have  the  benefit  of  some  independent 
and  disinterested  advice,  he  refrained  from  calling  in  any  adviser  for  her, 
but  took  upon  himself  the  duty  of  formulating  the  instruments  by  which 
the  "settlement"  was  to  be  effected,  and  had  himself  the  benefit  of  the 
presence  and  advice  of  his  own  attorney.  The  intervention  of  Mr.  Drown 
in  the  preparation  of  the  instruments  cannot  be  considered  as  any  pro- 
tection to  the  plaintiff.  He  was  the  attorney  of  the  defendant,  had  in- 
stituted the  suit  in  his  behalf,  and  was  under  his  professional  obliga- 
tion to  protect  the  interests  of  his  client,  and  would  feel  under  no  ob- 
ligation to  protect  the  interest  of  the  plaintiff,  or  to  give  to  her  any 
advice  or  counsel  in  reference  thereto.  The  court  finds :  "In  the  progress 
of  the  settlement,  particularly  on  August  31st,  when  its  precise  terms 
Avere  being  formulated,  the  defendant  here  had  the  benefit  of  the  pres- 
ence and  advice  of  his  attorney,  Mr.  Drown,  who  in  fact  instructed  him 
as  to  the  advisability  in  his  interest  of  a  certain  important  detail  of 
the  settlement;  the  plaintiff  here,  the  wife,  in  point  of  fact,  upon  her 
part,  had  no  advice  or  assistance  of  any  character  in  adjusting  the  terms, 
nor  in  the  conduct  of  the  negotiations  which  culminated  in  the  settle- 
ment in  question." 

Under  these  circumstances,  the  husband  must  be  held  to  have  been 
bound  to  the  exercise  of  all  those  duties  towards  the  wife  wdiich  spring 
from  the  existence  of  the  relation  between  them,  and  to  be  subject  to  that 
familiar  rule  in  equity,  "that  he  who  bargains  in  matter  of  advantage 
with  a  person  placing  confidence  in  him  is  bound  to  show  that  a  rea- 
sonable use  has  been  made  of  that  confidence,"  and  thus  be  precluded 
from  gaining  any  advantage  from  the  transaction  between  them. 
When,  therefore,  the  court  found  that  the  transaction  was  without  any 
pecuniary  advantage  to  the  wife;  that  the  husband  had  received  great 
pecuniary  advantage  therefrom;  that  the  consideration  recited  in  the 
instrument  of  sottlement,  and  upon  which  it  purported  to  have  been 
made,  was  untrue;  that  the  suit  i'or  divorce  had  been  brought  by  him 
as  a  means  of  coercing  her  into  a  surrender  of  a  portion  of  her  separate 
estate,  and  for  no  other  purpose;  that  it  had  the  effect  to  aggravate  her 


CHAP.  V.J  DOLLIVER  v.  DOLLIVER  497 

bodily  infirmity;  and  that  sh?  was  constrained  to  execute  the  instruments 
of  settlement  by  reason  of  the  moral  pressure  exerted  upon  her  by  the 
consideration  of  the  effect  upon  her  that  would  be  produced  by  the  prose- 
cution of  the  suit ;  and  that  she  had  no  independent  advice  concerning 
the  legal  effect  and  operation  of  said  instruments, — its  conclusion  of  law 
and  judgment  that  the  defendant  should  surrender  to  the  plaintiff  all  the 
fruits  of  said  settlement,  and  that  the  settlement  should  be  in  all  re- 
spects rescinded,  was  the  necessary  result  of  such  findings,  and  must 
be  affirmed. 

3.  The  objection  by  the  appellant  to  that  portion  of  the  judgment  re- 
quiring the  transfer  of  the  Hyde  Street  lot  is  without  merit.  The  court 
finds  that  after  the  execution  by  the  plaintiff  to  the  defendant  of  her 
promissory  notes  aforesaid,  he  hypothecated  them  to  the  Security  Sav- 
ings Bank  for  a  loan  of  nine  thousand  dollars,  and  that  he  applied  six 
thousand  five  hundred  dollars  of  the  money  so  received  by  him  to  the 
purchase  of  the  Hyde  Street  lot,  giving  at  the  same  time  a  mortgage  to 
the  vendor  for  the  sum  of  six  thousand  dollars  to  secure  the  unpaid  por- 
tion of  the  purchase  price  thereof.  The  plaintiff  had  the  right,  as  against 
the  appellant,  to  an  absolute  surrender  and  concellation  of  these  notes; 
but  inasmuch  as  the  Security  Savings  Bank  was  a  bona  fide  holder  of  a 
lien  thereon  to  the  extent  of  nine  thousand  dollars,  she  had  the  right,  at 
her  option,  to  follow  the  proceeds  of  the  notes  into  the  property  into 
which  they  had  been  converted.  The  defendant  thereby  suffers  no  in- 
jury, as  he  merely  surrenders  to  the  plaintiff  the  property  which  he  ob- 
tained by  the  unauthorized  use  of  her  promissory  notes,  and  the  plaintiff 
can  become  the  owner  of  the  property  only  by  the  payment  of  the  un- 
paid portion  of  the  purchase  price  for  which  the  property  is  held  in 
mortgage.  For  the  purpose  of  sustaining  the  judgment  of  the  court,  we 
can  assume  that  the  defendant  was  unable  or  unwilling  to  redeem  the 
notes  from  the  bank,  or  that  the  plaintiff  elected  to  take  the  property 
into  which  the  money  for  whose  payment  they  were  held  had  been  con- 
verted, and  in  the  absence  of  any  evidence  upon  the  point,  we  must  also 
assume  that  the  purchase  price  of  the  property  was  its  actual  value.  The 
proposition  on  the  part  of  the  appellant  that  he  may  be  liable  to  a  suit  for 
the  unpaid  amount  of  the  purchase  price  is  sufficiently  answered  by  the 
fact  that  it  does  not  appear  from  the  record  that  he  gave  any  personal 
obligation  therefore.  If  the  defendant  had  desired  to  retain  this  prop- 
erty as  his  own,  it  was  at  least  incumbent  on  him  to  offer  to  return  to  the 
plaintiff  her  promissory  notes,  freed  from  the  claim  of  the  bank.  She 
was  under  no  obligation  to  accept  in  lieu  thereof  the  obligation  of  the 
defendant  to  return  them  when  this  lien  should  be  discharged,  or  to 
accept  the  encumbrance  on  the  property  as  their  equivalent. 

4.  The  provision  in  the  judgment  in  reference  to  the  lots  in  the  Paul 
tract  is  not  prejudicial  to  the  defendant.  The  terms  of  the  judgment  are, 
that  he  shall  execute  to  her  "  a  good  and  sufficient  deed  of  all  the  interest 
acquired,  or  claimed  tp  have  been  acquired,     ...     by  virtue  of  any  in- 


498  BASSET  v.  NOSWOKTHY  [part  i. 

strument  executed  by  the  plaintiff  to  said  defendant  on  the  thirty-first 
day  of  August,  1885,  or  one  the  first  day  of  September,  1885."  The  com- 
plete terms  of  the  "settlement"  between  the  plaintiff  and  defendant  are 
not  found  by  the  court,  and  the  allegation  of  the  plaintiff  that  she  signed 
other  instruments  than  those  set  forth  in  the  complaint  is  not  denied. 
If  the  defendant  did  not  acquire  any  interest  in  the  Paul  tract  lots  by 
virtue  of  any  instrument  executed  on  either  of  those  days,  he  can  suffer 
no  injury  by  a  compliance  with  the  judgment.  And  as  the  injury  to  the 
plaintiff  is  found  by  the  court  to  have  resulted  solely  and  directly  from 
the  wrongful  acts  of  the  defendant,  it  is  not  for  him  to  complain  that 
the  court  has  required  of  him  as  complete  restitution  as  is  within  his 
power  to  make,  so  long  as  he  sustains  no  injury  or  diminution  of  his 
estate.^ 

The  judgment  is  affirmed. 


Section  4.     Notice. 


BASSET  V.  NOSWOKTHY. 

In  Chancery,  before  Lord  Keeper  Nottingham,  1673. 

{^Reports  Tempore  Finch,  102.] 

The  Plaintiff,  Sir  William  Basset,  intitled  himself,  as  Son  and  Heir  of 
Elizabeth  Seymour,  who  was  the  only  Daughter  and  Heir  of  Sir  Joseph 
Killegrew,  who  was  Brother  and  Heir  of  Sir  Henry  Killigrew,  whose 
Estate  the  Lands  in  the  Bill  mentioned  formerly  were;  the  Defendant's 
Title  being  under  a  pretended  Purchase  (as  the  Plaintiff  alledged)  of 
these  Lands  at  Drury-house,  and  under  the  Will  of  Sir  Henry  Killi- 
grew, the  Purchase  being  from  .Jane  Davis,  afterwards  the  Wife  of  Mr. 
Berkley,  and  from  Henry  Hill,  the  pretended  natural  Son  of  the  said 
Sir  Henry  Killigrew,  of  which  Will  the  Plaintiff  alledged  there  was  a 
Revocation  by  some  subsequent  Deed  or  Will ;  and  for  a  Discovery 
thereof,  and  what  Mr.  Nosworthy  really  paid  for  the  Purchase,  and  what 
Deeds  and  Writings  he  had,  and  to  set  aside  the  Incumbrances  which 
he  had  bought  to  protect  his  l^urchase,  and  that  Mrs.  Seymour  might  try 

'  TIh'  opinion  of  the  Court  on  a  question  of  practice  is  omitted. 

^  On  tlie  Hubject  of  the  protection  to  property  accorded  to  innocent  purchasers 
for  vahie  without  notice,  see  an  article  by  Professor  James  TJarr  Ames  in 
1  Harv.  Law  Rev.  1  ;  Langdell's  Summary  of  Equity  Pleading,  209-227.  For 
a  collection  of  cases  see  Ames'  Trusts,  286-289. 


CHAP,  v.]  BASSET  V.  NOSWOKTHT  499 

her  Title  at  Law  upon  the  supposed  Eevocation  against  the  Title  of  the 
Defendant,  as  a  purchaser  luider  the  said  Will,  the  now  PlaiiitifTs  ex- 
hibited this  Bill: 

To  which  the  Defendant  pleaded  a  Dismission  of  a  Bill  in  the  Court  of 
Exchequer  signed  and  inrolled,  which  Bill  was  there  brought  for  the  same 
Matter  as  in  this  Bill,  and  fully  examined  and  dismissed  upon  a  full 
Hearing,  but  without  Prejudice,  and  the  Dismission  duly  signed  and  in- 
rolled;  and  he  farther  pleaded,  that  he  was  a  Purchaser  for  a  valuable 
Consideration,  bona  fide,  paid  without  Notice  of  any  Revocation.' 

The  Cause  being  then  set  right  before  the  Court  upon  the  true  Merits 
thereof,  there  were  only  two  Points  which  were  considerable : 

1.  What  the  Law  of  this  Court  is  concerning  Purchasers. 

2.  Whether  the  Defendant  was  a  Purchaser  within  that  Law. 

As  to  the  first  Point,  the  Purchaser,  bona  fide,  without  Notice  of  any 
Defect  in  his  Title  at  the  Time  of  the  Purchase  made,  may  lawfully  buy 
in  a  Statute  or  Mortgage,  or  any  other  Incumbrance;  and  if  he  can  de- 
fend himself  at  Law  by  any  such  Incumbrances  bought  in  his  Adversary 
shall  never  be  aided  in  a  Court  of  Equity  by  setting  aside  such  Incum- 
brances; for  Equity  will  not  disarm  a  Purchaser,  but  assist  him;  and 
Precedents  of  this  Nature  are  very  antient  and  numerous,  viz.,  where  the 
Court  hath  refused  to  give  any  assistance  against  a  Pvirchaser  either  to 
an  Heir,  or  to  a  Widow,  or  to  the  Fatherless,  or  to  Creditors,  or  even  to 
one  Purchaser  against  another. 

1.  And  this  Eule,  in  a  Court  of  Equity,  is  agreeable  to  the  Wisdom  of 
the  Common  Law,  where  the  Maxims  which  refer  to  Descents,  Discon- 
tinuances, Nonclaims,  and  to  collateral  Warranties,  are  only  the  wi?e 
Arts  and  Intentions  of  the  Law  to  protect  the  Possession,  and  to 
strengthen  the  Rights  of  Purchasers. 

2.  As  to  the  second  Point  the  Court  declared,  that  the  Defendant  had 
sufficiently  proved  his  Plea,  and  himself  to  be  a  Purchaser  within  the 
Protection  of  this  Court,  because  no  Fraud  or  Circumvention  appeared; 
and  it  was  evident,  that  the  Defendant  had  paid  several  great  Sums  to 
discharge  Statutes,  which  incumbered  those  Lands,  over  and  above  what 
was  paid  to  Mrs.  Jane  Berkley  for  her  Estate  for  Life,  and  to  Henry 
Hill  for  his  Reversion ;  and  tho'  the  Lands  were  proved  to  be  of  much 
greater  Value  at  this  Time,  by  the  falling  of  several  Lives,  than  what 
they  were  at  the  Time  of  the  Purchase,  yet  that  will  not  alter  the  Case  in. 
Equity,  because  in  Purchases  the  Question  is  not,  whether  the  Considera- 
tion he  adequate,  hut  whether  'tis  valuable;  for  if  it  be  such  a  Considera- 
tion as  will  make  the  Defendant  a  Purchaser  within  the  Statute  21  Eliz. 
and  bring  him  within  the  Protection  of  that  Law,  he  ought  not  to  be  im- 
peached in  Equity. 

And  since  Henry  Hill  had  nothing  to  subsist  on  during  his  Minority 
but  this  Reversion,  and  being  a  Bastard  could  have  no  Kindred  by  the 
Law,  and  probably  but  few  Friends,  there  was  some  Hazard  of  the  Money, 

*  Part  of  the  ease  \dealing  with  pleading  and  practice  is  omitted. 


500  HAKRISON  v.  FORTH  [part  i. 

which  was  advanced  during  his  Minority,  if  he  died  before  the  Fine  and 
Recovery  suffered. 

Therefore  the  Court  allowed  the  Plea  and  dismissed  the  Bill,  and  sup- 
pressed all  the  Depositions  taken  in  this  Cause  before  April  last,  and 
all  since,  but  only  such  which  relate  to  this  Plea  of  the  Defendant. 


HARRISON  V.  FORTH. 

In  Chancery,  before  Lord  Keeper  Somers,^  1695. 

[Precedents  in  Chancery  51.] 

The  Master  of  the  Rolls  was  of  opinion  in  this  case,  that  if  A.  pur- 
chases an  estate,  with  notice  of  an  incumbrance,  or  that  it  is  redeemable, 
and  then  sells  it  to  B.  who  has  no  notice;  who  afterwards  sells  it  to  C. 
who  had  notice;  that  by  this,  the  first  notice  to  A.  the  first  purchaser,  is 
thereby  revived,  and  that  C.  the  last  purchaser  shall  be  liable  to  the 
incumbrance  or  redemption,  as  if  it  had  never  been  in  the  hands  of  one 
who  had  no  notice. 

Afterwards,  on  appeal  to  my  Lord  Keeper,  it  being  urged,  that  in 
such  case  an  innocent  purchaser  without  notice  may  be  forced  to  keep 
his  estate,  and  cannot  sell  it,  and  shall  be  accountable  for  all  the  profits 
received  ab  initio,  his  Lordship  held,  that  though  A.  and  C.  had  notice, 
yet  if  B.  had  no  notice,  the  plaintiff  could  not  be  relieved  against  the 
defendant  C.  and  ordered  C.  to  be  examined  on  interrogatories,  if  he 
ever  saw  the  conveyance  from  the  plaintiff  to  her  sisters,  and  then 
to  be  tried  if  tlie  defendant  C  paid  any,  and  what  consideration  for  the 
said  lands;  and  if  B.  had  notice  at  the  time  of  his  purchase  that  it 
was  redeemable;  for  if  he  had  not,  the  plaintiff  could  not  be  relieved, 
though  A.  and  C.  had  notice. 

*  "I,earning,  patience,  industry,  instinctive  equitablene-ss  of  judgment,  com- 
prehensiveness of  view,  subtlety  of  discernment,  and  command  of  apt  and 
perspicuous  language;  in  short,  all  the  qualities  best  fitted  to  adorn  the 
woolsack  are  ascribed  to  Somers  by  his  contemporaries.  Yet,  partly  by  fault 
of  his  reporters,  partly  in  consequence  of  the  dearth  of  causes  celehrcs,  partly 
liy  reason  of  his  early  surrender  of  the  great  seal,  his  recorded  achievement 
is  by  no  moans  commensurate  with  his  reputation.  Of  his  decrees  in  chancery 
only  the  meagie  summaries  given  by  Vernon  and  Peere  Williams  are  extant." 
Article  on  John,  Lord  yoniers,  in  Diet.  Natl.  Biography. 


CHAP,  v.]  LOWTHEK  v.  CARLTON  501 


BRANDLYN  v.  ORD. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1738. 

[1  Atkyns  571.] 

It  was  said  by  Lord  Chancellor  in  this  cause,  that  a  man  who 
purchases  for  a  valuable  consideration,  with  notice  of  a  voluntary 
settlement  from  a  person  who  bought  without  notice,  shall  shelter  him- 
self under  the  first  purchaser,  yet  it  must  be  the  very  same  interest  in 
every  respect. 

He  likewise  said,  he  never  knew  a  man  defend  himself  in  this  court, 
as  a  purchaser  for  a  valuable  consideration  under  articles  only;  if  he  is 
injured,  he  must  sue  at  law  upon  the  covenants  in  the  articles.^ 


LOWTHER  V.  CARLTON. 
In  Chancery,  before  Lord  Chakcellor  Hardwicke,  1741. 

[2   Atkyns   242.] 

This  is  a  bill  brought  to  impeach  a  purchase  made  32  years  ago :  the 
defendant  was  a  purchaser  with  notice,  from  the  Marquis  of  Wharton, 
who  bought  without  notice. 

It  is  certainly  the  rule  of  this  court,  that  a  man  who  is  a  purchaser 
with  notice  himself  from  a  person  who  bought  without  notice,  may 
shelter  himself  under  the  first  purchaser,  or  otherwise  it  would  very  much 
clog  the  sale  of  estates. 

If  a  counsel  or  attorney  is  employed  to  look  over  a  title,  and  by  some 
other  transaction  foreign  to  the  business  in  hand  has  notice,  this  shall 
not  affect  the  purchaser;  for  if  this  was  not  the  rule  of  the  court  it  would 
be  of  dangerous  consequence,  as  it  would  be  an  objection  against  the 
most  able  counsel,  because  of  course  they  would  be  more  likely  than 
others  of  less  eminence  to  have  notice,  as  they  are  engaged  in  a  great 
number  of  affairs  of  this  kind. 

'  The  balance  of  the  ease  dealing  with  questions  of  practice  is  omitted. 


502  STEHEY  v.  AEDEN  [part  i. 


STERRY  V.  ARDEN. 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1814. 

[1  Johnson's  Chancery  261.] 

Louisa  Ann,  one  of  the  plaintiffs  in  this  case,  and  one  of  the 
daughters  of  James  Arden,  and  Robert  Sterry,  her  husband,  filed  their 
bill  to  obtain  the  benefit  of  a  conveyance  made  to  the  defendants, 
Richard  D.  Arden  and  DeWitt  Clinton,  in  trust  for  her,  by  her  father, 
James  Arden,  and  for  an  account.  The  circumstances  attending  the 
execution  and  delivery  of  this  deed  are  the  same  as  those  stated  in  the 
preceding  case,  in  regard  to  the  deed  of  the  plaintiff's  sister,  Eliza  B. 
Arden;  and  which  it  is,  therefore,  unnecessary  to  repeat. 

The  circumstances  peculiar  to  this  case,  stated  in  the  bill,  were,  that 
on  the  11th  of  December,  1809,  the  plaintiffs  married,  and  had  a  child 
born,  which  is  still  living.  That  the  plaintiff,  Robert  Sterry,  when  the 
marriage  took  place,  understood,  and  believed  that  Louisa  Ann  had  a 
beneficial  interest  in  the  trust  premises  according  to  the  conveyance. 
That  James  Arden  fraudulently  executed  a  deed  of  conveyance  of  the 
trust  premises  to  the  defendant,  Philip  Verplank,  a  relation,  who, 
knowing  the  interest  of  the  plaintiffs  in  the  premises,  fraudulently 
accepted  such  deed,  and  claimed  to  hold  the  premises  by  virtue 
thereof:  they,  James  Arden  and  Philip  Verplank,  thereby  intending 
to  defraud  the  plaintiffs,  and  defeat  the  deed  in  trust  for  Louisa 
Ann,  and  the  estate  thereby  created.  That  the  pretended  deed 
to  Verplank  was  dated  the  11th  of  December,  3809,  and  expressed 
to  be  in  consideration  of  a  large  sum  of  money  paid,  by  him, 
to  James  Arden ;  but  that,  in  fact,  the  deed  was  not  executed  on  that, 
but  on  some  subsequent  day,  and  fraudulently  dated  anterior  to  its 
actual  delivery;  and  that,  if,  in  fact,  it  was  executed  on  the  11th  of 
December,  1809,  it  was  so  executed  and  accepted,  at  an  hour  subsequent 
to,  and  with  full  knowledge  of  the  marriage  of  the  plaintiffs;  and  that 
the  consideration,  mentioned  in  the  deed  to  Verplank,  was  never  truly 
paid,  or  secured  by  him,  to  James  Arden,  from  the  proper  funds  of 
Verplank. 

The  Chancellor  [Kent.]  The  opinion  which  I  have  already  given 
in  the  other  case  [Souverbye  v.  Arden,  1  Johns.  Ch.  240],  would  then 
apply  to,  and  govern  this,  was  it  not  for  a  new  matter  of  defence  set 
up  by  Verplank,  who  claims  to  be  a  subsequent  hona  fide  purchaser. 
This  necessarily  leads  me  to  the  consideration  of  two  very  important 
points  arising  out  of  this  case: 

1.  Whothor  the  voluntary  conveyance  to  ihe  daughter  was  fraudulent 
and  void,  umlcr  the  3d  section  of  the  act  of  the  2Gth  of  February,  1787, 


CHAP,  v.]  STERKY  V.  AEDEN  503 

(s.  10.  c.  44.,  and  which  is  the  same,  precisely,  as  the  statute  of  27th 
Eliz.  c.  4.,)  as  against  a  subsequent  i^urchaser  for  valuable  consideration ; 
and,  if  so,  then, 

2.  Whether  the  intervening  marriage  of  the  plaintiffs,  between  the 
settlement  and  the  purchase,  did  not  restore  the  first  deed,  and  give  it 
value  and  validity. 

1.  I  shall  consider  Verplank  as  a  purchaser  for  a  valuable  considera- 
tion. He  gave  16,000  dollars  in  cash,  and,  though  it  may  have  been  a 
very  cheap  purchase,  there  was  not  such  inadequacy  of  price  as  to  justify 
an  inference  of  fraud.  I  shall,  also,  consider  him  as  a  purchaser  without 
actual  notice  of  the  settlement  upon  the  plaintiff.  He  declares  in  his 
answer,  that  he  had  no  knowledge  or  notice  of  the  conveyance  of  1805, 
when  he  purchased,  and  there  is  not  proof  to  contradict  this  answer.  But 
I  hold  him  chargeable  with  constructive  notice,  or  notice  in  law,  because 
he  had  information  sufficient  to  put  him  upon  inquiry.  He  admits  that, 
before  the  execution  of  the  deed,  he  had  heard  that  the  grantor  had  made 
some  provision  for  his  daughters  out  of  property  in  Greenwich  street ;  and 
there  is  no  evidence  in  the  case,  that  the  grantor  owned  any  other 
property  in  that  street,  except  the  lots  included  in  the  settlement.  Here, 
then,  is  the  case  of  a  fair  voluntary  conveyance,  made  by  a  father  to  his 
daughter,  he  not  appearing  to  be  indebted  at  the  time,  and  a  subsequent 
sale  made  by  him.  with  intent  to  defeat  that  settlement,  but  made  for 
a  valuable  consideration,  and  to  a  purchaser  chargeable  only  with  notice 
in  law.  The  question  arising  on  this  first  point  is  definitely  settled, 
in  England,  by  determinations  of  a  recent  date  in  the  four  great  courts 
at  Westminster;  and  it  is  impossible  not  to  feel  all  the  respect  which 
is  justly  due  to  decisions  of  so  much  weight  and  authority.  Evelyn  v. 
Templar,  2  Bro.  148 ;  Doe,  ex  dem.  Ottley  v.  Manning,  9  East,  59 ; 
Doe  I'.  Martyn,  4  Bos.  &  Pull.  332;  Hill  v.  The  Bishop  of  Exeter,  2 
Taunt.  82 ;  Doe  v.  Hopkins,  in  the  Excheq.,  cited  in  9  East  70.  The 
voluntary  deed  is  considered  fraudulent  and  void  against  the  subsequent 
deed;  and  it  is  to  be  held  immaterial  whether  the  purchaser  had,  or  had 
not,  notice  of  the  prior  deed;  and  it  was  an  old  settled  rule,  decided  in 
Gooch's  case,  (5  Co.  60.,)  that  notice  to  a  purchaser,  of  a  fraudulent 
deed,  was  of  no  consequence,  as  it  was  still  void. 

It  has  been  suggested,  that  this  is  a  principle  settled  in  England 
since  our  revolution ;  but  it  appears  to  me  that  the  late  cases  have 
declared  no  new  doctrine,  and  have  only  followed  the  rule  as  they  found 
it,  long  before  settled  by  a  series  of  judicial  decisions  of  too  much 
authority  to  be  there  shaken.  In  t^ie  late  case  in  East's  Rep.  Lord 
Ellenborough,  in  delivering  the  opinion  of  the  K.  B.,  gave  a  full  and 
accurate  view  of  most  of  the  cases  on  both  sides  of  the  question,  from 
the  time  of  the  statute  of  Elizabeth;  and  no  one  who  examines  that 
opinion  attentively,  and,  especially,  if  he  also  inspects  the  original 
cases  referred  to,  can  well  hesitate  as  to  the  correctness  of  the  conclusion 
drawn  by  the  cour|,  that  "  the  weight,  number,  and  uniformity  of  the 


504  STERRY  v.  ARDEN  [part  i. 

authorities,  in  favour  of  the  rule  as  there  decided,  do  very  much  pre- 
ponderate." 

It  cannot  be  expected  that  I  should  attempt  to  go  over  in  dctuil,  the 
numerous  cases  which  have  been  so  ably  arranged  and  reviewed,  and  so 
fairly  stated  in  the  opinion  referred  to.  I  shall  content  myself  with 
merely  alluding  to  them,  and  with  the  remark,  that  those  cited  in 
favour  of  the  position,  that  the  voluntary  deed  is  only,  prima  facia, 
fraudulent  as  against  the  subsequent  purchaser,  are,  generally,  mere 
dicta,  and  not  solemn  adjudications  upon  the  point. 

In  favour  of  the  voluntary  settlement,  are  Sir  Ralph  Bovey's  case, 
1  Vent.  193;  Jenkins  v.  Kemeshe,  Hard.  398;  1  Lev.  150;  Lavender  v. 
Blackstone,  2  Lev.  146;  Garth  v.  Mois,  1  Keb.  486;  Anon.  Sty.  446; 
Gilbert's  Law  of  Ev.  201;  Standon  v.  Charlwood,  MSS.  cited  9  East, 
64;  Lord  Mansfield,  in  Cadogan  v.  Kennett,  Cowp.  434.,  and  in  Doe  v. 
Routledge,  Cowp.  708.  710. 

In  favour  of  the  subsequent  purchaser,  are  Woodie's  case,  cited  in 
Colville  V.  Parker,  Cro.  Jac.  158;  Prodgers  v.  Langham,  1  Sid.  133; 
White  V.  Ilussey,  Pree.  in  Ch.  14;  Tonkins  v.  Ennis,  1  Eq.  Gas.  Abr. 
334,  pi.  6;  White  v.  Sansom,  3  Atk.  412;  Townsend  v.  Windham,  2  Ves. 
10;  Roe  v.  Milton,  2  Wils.  356;  Goodright  v.  Moses,  2  Bl.  Rep.  1019; 
Chapman  v.  Emery,  Cowp.  278;  Lord  Kenyon,  in  Nunn  v.  Wilsmore, 
8  Term,  628.  There  are,  however,  some  cases  which  are  not  mentioned 
in  the  opinion  delivered  by  Lord  Ellexborouoii,  and  which,  as  it  seems 
to  me,  give  additional  weight  to  the  opinion  which  has  been  adopted. 
Thus  in  Walker  v.  Burrows,  1  Atk.  93,  Lord  Hardwicke  observes, 
"  It  has  been  said,  all  voluntary  settlements  are  void  against  creditors, 
equally  the  same  as  they  are  against  subsequent  purchasers,  under  the 
statute  of  27  Eliz.  ch.  4,  but  this  will  not  hold;"  and  he  afterwards 
adds,  "  But,  upon  the  statute  of  the  27  Eliz.,  which  relates  to  purchasers, 
there,  indeed,  a  settlement  is  clearly  void,  if  voluntary,  that  is,  not  for  a 
valuable  consideration,  and  the  subsequent  purchasers  shall  prevail  to 
set  aside  such  settlement."  Again,  in  Upton  v.  Basset,  which  was 
shortly  after  the  statute,  (Cro.  Eliz.  445.,)  there  was  an  evident  admission 
and  understanding  of  all  the  judges,  that  a  voluntary  conveyance  was 
void,  under  the  27  Eliz.,  against  a  subsequent  bona  fide  purchaser  for 
valuable  consideration.  The  case  of  Taylor  v.  Stile  is  cited  by 
Sugden,  p.  483.,  as  being  decided  in  chancery,  in  1763,  and  in  which 
Lord  NoRTHiNOTON  held  it  to  be  clear,  that  a  subsequent  purchaser 
for  valuable  consideration,  though  with  notice,  should  set  aside;  a 
voluntary  settlement;  and  Mr.  J.  Bathurst  said,  ho  knew  that  Lord 
IIarijvvicke  had  determined  so  in  twenty  instances.  In  Douglass  v. 
Waad,  1  Ch.  Cas.  99,  the  court  of  chancery  set  aside  a  voluntary  con- 
veyance as  fraudulent  against  a  subsequent  purchaser,  and  though 
the  court  are  reported  to  have  said,  "  that  all  voluntary  conveyances  are, 
prima  facie,  to  be  looked  upon  as  fraudulent  against  purchasers,  unless 
the  contrary  be  made  to  appear,"  yet  the  decree  was  conformable  to  the 


CHAP,  v.]  STERRY  V.  ARDEN  505 

principle  contended  for  by  the  purchaser,  for  it  set  aside  the  voluntary 
conveyance  as  fraudulent,  though  nothinj?  appeared  but  the  want 
of  valuable  consideration  to  make  it  so.  It  is,  also,  worthy  of  notice, 
that,  in  the  original  text  of  the  treatise  of  equity,  published  in  1737, 
and  of  which  Fonblanque  is  the  editor,  (1  Fonb.  2G8.,)  the  same  doctrine 
is  explicitly  laid  down.  In  short,  the  principle  set  up  in  favour  of  the 
purchaser,  has  been  so  long  and  so  well  established,  by  a  series  of 
authoritative  decisions,  supported  by  the  most  eminent  judges,  that  I 
feel  bound  by  them,  whatever  doubts  I  might  have  had  upon  this  con- 
struction of  the  statute,  if  I  had  been  at  liberty  to  follow  my  own 
reflections.  When  a  principle  has  taken  such  deep  root,  and  received 
such  uniform  support,  it  belongs  to  the  legislature,  and  not  to  the  courts 
of  justice,  to  suppress  or  destroy  it. 

It  has  been  observed  that  the  present  defendant  was  not  a  purchaser 
with  actual  notice  of  the  deed  of  settlement.  He  does  not,  therefore, 
come  within  the  exception  for  which  some  have  contended.  Doubts 
have  been  frecpiently  expressed,  whether  the  better  construction  of  the 
statute  would  not  have  been  to  support  the  voluntary  conveyance  against 
purchasers  for  a  valuable  consideration,  with  notice;  (and  to  that 
opinion  I  strongly  incline;)  yet  it  is  pretty  evident,  that  the  allusion 
here  was  only  to  the  case  of  actual  notice,  where  the  purchaser  was 
intentionally  and  premeditatingly  defeating  the  fair  claims  and  expec- 
tations of  the  prior  grantee.  9  East,  71 ;  4  Bos.  &  Pull.  335 ;  1  Fonb. 
2G9.  n.  g.  Equity  does  make  a  distinction  between  purchasers  with  and 
without  notice  of  the  prior  voluntary  settlement  made  without  fraud; 
but  it  is  only  when  the  former  comes  for  the  aid  of  the  court  to  compel 
a  specific  performance,  and  it  then  refuses  its  aid,  and  leaves  him  to  his 
remedy  at  law.    Bennet  v.  Musgrove,  2  Yes.  52 ;  Oxley  v.  Lee,  1  Atk.  625. 

2.  The  next  point  is,  whether  the  marriage  of  the  plaintiffs,  before 
the  purchase,  did  not  give  a  new  character  to  the  first  deed,  so  as  to 
entitle  it  to  preference. 

It  is  admitted  that  the  deed  to  Yerplank  was  made  and  executed  after 
the  marriage,  and  in  consequence  of  it,  and  the  testimony  in  the  case 
is  decisive,  (I  refer  to  the  depositions  of  Mrs.  Servant  and  Colonel 
Hawkins,)  that  the  plaintiff,  Robert  Sterry,  married  with  previous 
knowledge  of  this  deed  of  settlement  on  his  wife.  Under  these  cir- 
cumstances, I  consider  the  law  to  be,  that  the  first  deed  became  good  and 
valuable,  and  ought  to  prevail.  The  marriage  was  a  valuable  considera- 
tion, which  fixed  the  interest  in  the  grantee  against  all  the  world; 
she  is  regarded  from  that  time  as  a  purchaser,  and  as  much  so  as 
if  she  had  then  paid  an  adequate  pecuniary  consideration.  It  has  been 
a  principle  of  long  standing,  and  uniformly  recognised,  that  a  deed, 
voluntary  or  fraudulent  in  its  creation,  and  voidable  by  a  purchaser,  may 
become  good  by  matter  ex  post  farhn.  1  Sid.  133.  1  East,  95.  It 
is  the  constant  language  of  the  books,  and  of  the  courts,  that  a 
voluntary  deed  is  m^ade  good  by  a  subsequent  marriage,  and  a  marriage 


50G  STERRY  v.  ARDEN  [part  i. 

lias  always  been  held  to  be  the  highest  consideration  in  law.  Co.  Litt. 
D  b.  The  eases  do  not  require  that  the  settlement  should  have  been 
made  with  a  view  to  any  particular  marriage;  it  is  sufficient  that  the 
settlement  was  afterwards  known  to  third  persons,  and  was  one  probable 
inducement  to  the  subsequent  marriage.  Indeed,  in  Brown  v.  Carter, 
5  Yes.  877,  888,  889,  Lord  Alvanley  did  not  think  it  very  material 
to  prove  that  the  marriage  was  even  made  with  notice  of  the  voluntary 
settlement,  as  the  knowledge  of  the  circumstances  of  the  party,  and  the 
inducement,  were  to  be  presumed.  The  principle  is,  as  it  is  there  stated, 
that  it  would  be  a  fraud  on  the  husband,  if  the  probable  inducement  was 
to  be  afterwards  withdrawn,  and  that  it  would  be  gross  injustice  to  take 
away  the  benefit  of  the  settlement  from  the  married  parties,  and  their 
issue.  The  case  of  Prodgers  v.  Langham,  1  Sid.  133,  is  a  leading  one 
on  this  point,  and  it  has  always  been  mentioned  as  good  law.  That  was 
a  case  of  a  voluntary  conveyance,  in  trust,  for  an  only  daughter  for 
twenty-one  years,  to  the  intent  that  the  profits,  before  marriage,  should 
be  applied  to  her  maintenance,  and,  if  she  married  with  the  father's 
consent,  then  in  trust  for  her  during  the  residue  of  the  term.  The 
court  held,  that  the  conveyance  to  the  daughter  was  a  voluntary  con- 
veyance, and  would  have  been  void  as  against  the  defendant,  a  subsequent 
purchaser  for  valuable  consideration,  if  the  marriage  had  not  intervened, 
yet  when  that  took  effect,  it  ceased  to  be  voluntary,  and  became  sup- 
ported by  a  valuable  consideration,  which  was  unimpeachable,  inasmuch 
as  the  marriage  was  an  advancement  to  the  daughter,  and  the  husband 
was  induced  (though  that  fact  does  not  appear  in  the  case)  by  the  prospect 
of  this  provision.  The  case  of  Kirk  v.  Clark,  Free,  in  Ch.  275 ;  2  Eq. 
Cas.  Abr.  45,  pi.  13,  is  equally  in  point;  it  was  there  held,  by  Lord 
Ch.  CowPER,  that  a  voluntary  settlement  on  a  son,  before  any  treaty  of 
marriage,  or  the  contemplation  of  any,  became  valuable  upon  his  mar- 
riage, which  was  made  with  notice  of  it,  the  settlement  being  regarded 
as  a  principal  inducement.  A  similar  decision  was  made  in  the  case  of 
the  East  India  Company  v.  Clavell,  Free,  in  Ch.  380,  381,  and  the 
proof  here,  brings  this  case  precisely  within  the  reach  of  those  I  have 
cited;  for  here  was  not  only  actual  notice  of  the  settlement,  but  induce- 
ment to  marry  in  consequence  of  it. 

The  conclusion  from  these  cases,  and  from  the  principles  which  they 
lay  down,  appears  to  me  to  be,  that  the  marriage  of  the  daughter,  in 
this  case,  changed  the  character  of  the  previous  settlement,  and  placed 
her  in  the  light  of  a  purchaser  for  a  valuable  consideration,  and  gave 
her  preference  to  any  subsequent  purchaser.  I  shall,  therefore,  set  aside 
the  deed  to  Veri)la)ik,  and  make  the  same  decree  as  in  the  former 
case. 

N.  B.  This  decree  was  unanimously  affirmed,  on  appeal  to  the  court 
of  errors,  March  28th,  1815.    [See  12  Johns.  Rep.  536.] 


CHAP,  v.]  "WOOD  V.  MANN  and  others  507 

WOOD  V.  MANN  and  others. 

In  the  United  States  Circuit  Court,  1833. 

[1  Sumner  506.] 

Bill  in  Equity  to  set  aside  a  certain  conveyance,  made  by  the  plaintiff 
to  one  John  R.  Adams,  (a  defendant,)  asserted  to  have  been  procured  by 
fraud  and  imposition  upon  the  plaintiff.  The  bill  averred,  that  Elisha 
Fuller,  one  of  the  defendants,  had  notice  of  the  alleged  fraud  and  imposi- 
tion, in  the  following  terms,  namely :  "  That  the  said  Fuller,  then  and 
there  well  hnowing  all  and  singular  the  premises,  and  combining  and 
confederating  as  aforesaid,  the  nominal  consideration  of  the  said  deed, 
being  stated  to  be  forty  thousand  dollars;  but  what  consideration,  or 
whether  any  consideration,  was  paid  therefor  by  the  said  Fuller,  your 
orator  knows  not ;  and  the  said  Fuller,  combining  and  confederating  as 
aforesaid,  well  knowing  all  the  premises,"  &c.  Fuller  pleaded,  that  he 
was  a  hona  fide  purchaser  under  Mann  of  parcel  of  the  premises,  without 
notice  of  the  asserted  fraud  or  imposition;  that  he  had  paid  a  part  of 
the  consideration  money,  and  that  the  residue  was  secured  by  a  mortgage. 
Upon  motion  of  the  plaintiff,  the  plea  was  set  down  for  argument,  as  to 
its  validity  in  matter  as  well  as  in  form;  and  the  questions  were  argued 
by  Rand  for  the  plaintiff,  and  by  Washburn  for  the  defendant,  Fuller. 

Story,  J.  The  first  question  made  at  the  bar  is,  whether,  if  the  plain- 
tiff asserts  a  legal  title,  the  plea  of  a  hona  fide  purchase  for  a  valuable 
consideration,  without  notice,  is  a  good  bar  in  equity  to  a  bill,  like  the 
present,  which  is  for  discovery  and  relief.  Without  doubt,  a  plea  to  the 
whole  bill,  which  is  bad  in  part,  and  good  in  part,  may  be  allowed  to  the 
extent  to  which  it  is  good,  and  overruled  as  to  the  residue.  It  may  be 
good  as  to  the  discovery,  and  bad  as  to  the  relief.  See  Cooper,  Eq. 
plead.  230;  Mitf.  Plead.,  4th  edit,  by  Jeremy,  pp.  294,  295.  Upon  the 
question,  whether  a  bona  fide  purchase  for  a  valuable  consideration,  with- 
out notice,  is  a  good  plea  in  bar  to  a  legal  title  asserted,  as  it  certainly 
is  to  an  equitable  title,  there  is  considerable  contrariety  in  the  authorities. 
Lord  Nottingham  is  reported,  in  the  case  of  Burlase  v.  Cooke,  2  Free- 
man, R.  24,  to  have  held  the  plea  to  be  a  good  bar.  But  he  is  said,  in 
the  subsequent  case  of  Rogers  v.  Seale,  2  Freeman,  R.  84,  to  have 
changed  his  opinion.  Both  these  cases,  however,  are,  as  Mr.  Sugden  has 
well  observed,  very  ill  reported.  Sugden  on  Vendors,  762,  7th  edition. 
In  Parker  v.  Blythmore,  2  Eq.  Abridg.  G.  p.  79 ;  S.  C.  Prec.  Ch.  58,  the 
Master  of  the  Rolls  held  the  plea  good.  Afterwards,  in  Williams  v. 
Lambe,  3  Brown,  Ch.  R.  264,  Lord  Thurlow  held  the  plea  bad  to  a  bill 
for  discovery  and  relief.  And  in  the  later  case  of  Jerrard  v.  Saunders, 
2  Ves.  Jr.  R.  453,  Lord  Loughborough  held  the  plea  good,  adhering 
to,  and  approving,  \the  doctrine  of  Lord  Nottingham   in  the  case   of 


508  WOOD  V.  MANN  and  others  [part  i. 

Basset  v.  Nosworthy,  Finch,  R.  102.  The  elementary  writers,  too,  on 
this  subject  are  as  ill  agreed  as  to  the  result  of  the  authorities ;  Mr. 
Sugden  adopting  one  view  and  Mr.  Belt  and  Mr.  Beames  another. 
Sugden  on  Vendors,  762,  763,  7th.  edition;  Belt's  note  to  3  Brown,  Ch. 
R.  263;  Beames's  Plead,  in  Equity,  234,  245.  Mr.  Chancellor  Kent 
has  come  to  the  conclusion,  that  the  rule  in  England  is  according  to  the 
decision  of  Lord  Thurlow.  Methodist  Episcopal  Church  v.  Jaques,  1 
Johns.  Ch.  R.  74.  If  it  were  material  to  decide  this  point  in  the  present 
case,  I  should  take  more  time  to  consider  it.  It  appears  to  me,  that  some 
of  the  cases  admit  of  distinctions,  which  may  reconcile  them.  There 
may  be  good  ground  to  refuse  a  discovery  against  such  a  purchaser,  when 
the  bill  might  be  maintained  for  relief.  And  there  may  also  be  good 
ground  not  to  interfere  with  such  a  purchaser,  so  far  as  to  take  from  him 
any  paramount  legal  title,  which  he  has  honestly  obtained;  and  yet, 
when  this  title  is  not  paramount  to  the  legal  title  of  the  plaintiff,  to  give 
him  full  relief.  The  case  of  dower  before  Lord  Thurlow  may  stand 
upon  this  distinction ;  and  perhaps  others.  But  it  is,  in  my  judgment, 
wholly  unnecessary  to  decide  the  point ;  and  therefore  I  leave  it  for 
farther  consideration.  See  Rancliffe  v.  Parkyns,  6  Dow,  R.  149,  230; 
Walwyn  v.  Lee,  9  Ves.  24;  Strode  v.  Blackmore,  3  Ves.  R.  211.  In 
Payne  v.  Compton,  2  Younge  &  Coll.  457,  Lord  Abixger  held  the  plea 
of  a  bona  fide  purchase  for  a  valuable  consideration  without  notice,  was 
good  in  Equity  as  a  defence  against  a  plaintiff  relying  on  a  legal  title. 

The  groundwork  of  the  argument  here  fails ;  for  it  is  not  true,  that  the 
plaintiff  does  assert  a  title  strictly  legal  in  all  aspects  of  the  case.  The 
argument  insists,  that  the  conveyance  of  the  plaintiff  to  Adams  was  a 
mere  nullity;  not  voidable,  but  utterly  void.  But,  however  it  may  be 
treated  as  between  the  original  parties,  in  a  loose  and  general  sense,  as 
a  nullity,  it  is  not  so  in  fact,  or  in  law.  The  title  was  voidable  for  the 
fraud,  and  not  void.  A  ho7ia  fide  purchaser,  for  a  valuable  consideration, 
and  without  notice,  under  the  fraudulent  grantee,  would  hold  the  estate 
at  law  against  the  original  grantor.  That  doctrine  has  been  repeatedly 
affirmed  by  this  Court;  and  particularly  in  the  case  of  Bean  v.  Smith, 
2  Mason,  R.  252,  272,  &c.  It  has  more  recently  been  fully  sanctioned 
by  the  Supreme  Court  of  Massachusetts  in  Somes  v.  Brewer,  2  Pick.  R. 
184.  So  that,  according  to  the  well-established  doctrine  in  this  Com- 
monwealth, the  deed  of  the  plaintiff  to  Adams  cannot  be  treated  as 
utterly  void,  but  as  voidable  only.  See  Picket  v.  Salway,  2  Barn.  & 
Aid.  R.  360;  Fletcher  v.  Peck,  6  Cranch,  R.  133. 

Rcs(;rt,  then,  is  now  hnd  to  a  Court  of  Equity,  not  to  enforce  a  legal 
title,  but  to  obtain  a  declaration,  that  the  original  deed  was  fraudulently 
ol;tairied,  and  of  course  to  procure  from  the  defendant.  Fuller,  a  re-con- 
veyance, if  he  purchased  with  notice,  as  the  bill  asserts  in  general  terms 
that  he  did.  The  plaintiff  asks  for  a  discovery,  which  itself  is  equitable 
relief,  for  the  purpose  of  having  a  surrender  of  the  asserted  fraudulent 
titles  of  the  defendants,  which  is  also  equitable  relief.     Wliatever,  then. 


CHAP,  v.]  WOOD  V.  MANN  and  others  509 

may  be  the  ease,  as  to  a  purely  legal  title  asserted  in  a  Court  of  Equity, 
it  does  not  strike  me,  that  this  can  be  treated  as  a  case  of  that  sort 
upon  the  actual  structure  of  the  bill  and  plea. 

But  it  is  very  clear,  that  the  plea  furnishes  no  bar  to  the  bill.  In  order 
to  make  it  a  good  bar,  it  is  necessary,  that  it  should  aver,  that  the  whole 
consideration  of  the  purchase  had  -been  paid  before  notice  of  the  plain- 
tiff's title.  Now,  the  plea  admits,  that  part  of  the  purchase  money  has 
been  paid,  and  that  the  residue  is  unpaid.  It  is  plain,  then,  upon  the 
unshaken  doctrine  of  the  authorities,  that  the  plea  is  bad.  Lord  Redes- 
dale  has  laid  down  this  doctrine  in  full  and  exact  terms  in  his  excel- 
lent work  on  Pleadings  in  Equity.  Speaking  upon  the  subject  of  a  plea 
of  this  sort  by  a  purchaser,  he  says :  "  It  (the  plea)  must  aver  the  con- 
sideration and  actual  payment  of  it ;  a  consideration  secured  to  be  paid  is 
not  sufficient."  Mitfords  Pleadings,  4th  edition,  by  Jeremy,  p.  275; 
Cooper's  Eq.  Pleadings,  282.  And  he  is  fully  borne  out  by  authority. 
Hardingham  v.  Nicholls,  3  Atk.  304,  is  directly  in  point;  and  indeed 
the  doctrine  has  passed  into  common  axiom  of  equitable  jurisprudence. 
Harrison  v.  Southcote,  1  Atk.  E.  538;  Story  v.  Lord  Windsor,  2  Atk. 
630;  Jewett  v.  Palmer,  7  Johns.  Ch.  K.  65;  Wormley  v.  Wormley,  8 
Wheat.  R.  449.  Therefore  I  have  no  doubt,  that  the  plea  must  be  over- 
ruled. And  the  only  question,  then,  will  be,  whether  it  should  be  over- 
ruled generally,  or  should  be  permitted  to  stand  for  an  answer,  with 
liberty  to  the  plaintiff  to  except;  for  without  such  liberty,  it  would  be 
establishing  it  as  a  good  answer;  Maitland  v.  W^ilson,  3  Atk.  R.  813; 
Sellon  V.  Lowen,  3  P.  W.  R.  239,  or  whether  the  benefit  thereof  should 
be  reserved  to  the  hearing  of  the  cause,  to  avail,  quantum  voire  possit. 
Lord  Redesdale  has  fullj^  stated  the  appropriate  effect  of  each  of  these 
courses :  "  If,  (says  he)  upon  argument  the  benefit  of  a  plea  is  saved 
to  the  hearing,  it  is  considered,  that,  so  far  as  appears  to  the  Court,  it 
may  be  a  defence;  but  that  there  may  be  matter  disclosed  in  the  evidence, 
which  would  avoid  it,  supposing  the  matter  pleaded  to  be  strictly  true; 
and  the  Court,  therefore,  will  not  preclude  the  question.  Where  a  plea  is 
ordered  to  stand  for  an  answer,  it  is  merely  determined,  that  it  contains 
matter,  which  may  be  a  defence,  or  part  of  a  defence ;  but  that  it  is  not 
a  full  defence;  or  it  has  been  informally  offered  by  way  of  plea;  or  it  has 
not  been  properly  supported  by  answers,  so  that  the  truth  of  it  is  doubt- 
ful." Mitford's  Pleadings  in  Eq.  p.  303,  4th  edition,  by  Jeremy.  See 
also  1  Turner  «&  Ven.  Pr.  p.  826,  6th  edition.  The  same  doctrine  was  held 
by  Mr.  Chancellor  Walworth  in  Orcutt  v.  Ormes,  3  Paige,  R.  459. 

It  appears  to  me,  that  the  proper  course  in  the  present  case  is,  to  over- 
rule the  plea  absolutely,  and  to  order  the  party  to  answer  generally;  in 
which  case  he  may  insist  upon  the  same  matters  of  defence  by  way  of 
answer,  and  have  the  full  benefit  of  them.  The  matter  of  the  plea  does 
not  furnish  a  complete  bar  to  the  bill ;  for  even  if  the  title  in  the  defend- 
ant, Fuller,  is  unimpeachable^  because  he  had  no  notice  of  the  fraud  or  im- 
position ;  still,  as  the  whole  purchase  money  has  not  been  paid,  the  plain- 


510  WOOD  V.  MANN  and  others  [part  i. 

tiff  may  be  entitled  to  relief  to  the  extent  of  the  unpaid  purchase  money. 
It  is  unnecessary  now  to  decide,  whether,  if  the  defendant  stands  in  the 
predicament  of  a  bona  fide  purchaser  without  notice,  having  paid  part 
of  the  purchase  money,  the  deed  to  him  can  be  set  wholly  aside,  or  set 
aside  pro  tanto;  or  whether  the  remedy  of  the  plaintiff  against  him  is  to 
have  the  residue  of  the  purchase  money  paid  over  to  him,  if,  upon  the 
full  hearing  of  the  cause,  the  plaintiff  establishes  the  case,  as  put  forth 
in  his  bill.  The  other  parties  have  an  interest  in  the  decision  of  these 
points;  and  therefore  they  should  be  reserved  to  the  hearing. 

But  what  is  to  me  decisive  for  overruling  the  plea  is,  that  it  does  not 
expressly  and  in  terms  deny,  by  proper  averments,  notice  of  the  fraud 
and  imposition,  which  are  charged  in  the  bill,  and  of  which,  (though  in 
a  very  loose  and  inartificial  manner,)  the  defendant.  Fuller,  is  charged  by 
the  bill  as  having  notice.  It  is  clear,  by  the  authorities,  that  it  is  not 
sufBcient  to  deny  generally  notice  of  such  facts,  so  charged,  in  the  answer 
in  support  of  the  plea;  but  the  answer  must  deny  them  specially  and  par- 
ticularly, as  charged  in  the  bill.  This  was  the  decision  of  Lord  Hard- 
wiCKE  in  Eedford  v.  Wilson,  3  Atk.  R.  815,  and  it  has  been  constantly 
adhered  to,  as  undoubted  law.  See  Mitford  on  Plead.,  p.  276,  4th  edi- 
tion, by  Jeremy;  Cooper's  Eq.  Plead.,  p.  283,  238,  239;  Beames's  Plead, 
in  Eq.  p.  247;  Jerrard  v.  Saunders,  2  Ves.  Jr.  R.  187;  S.  C.  4  Brown,  Ch. 
R.  322;  Senhouse  v.  Earl,  2  Ves.  R.  450;  Willis's  Plead,  in  Eq.  p.  568. 
note;  Sugden  on  Vendors,  p.  761,  7th  edition;  Rancliffe  v.  Parkyns,  6 
Dow,  R.  230.' 

Plea  overruled.^ 

^  The  balance  of  the  case  dealing  with  the  question  of  pleading  is  omitted. 

"''Tlie  defendant,  May,  avers,  that  the  deed  to  him  was  executed  and 
delivered  on  the  1st  of  March,  1819;  and  the  subpoena  and  injunction  in  the 
case,  were  served  on  the  9th  of  March,  1819.  Part  of  the  consideration  for 
the  purchase  by  May,  is  averred  to  have  been  paid  at  the  time  of  the  execu- 
tion and  delivery  of  the  deed,  by  the  transfer  and  delivery  to  Palmer  of 
several  promissory  notes,  given  by  William  Eaton  to  May,  and  which  are 
alleged  to  have  been  good  and  valid.  But  another  part  of  the  consideration, 
viz.,  100  dollars,  was  not  paid  until  the  20th  of  March,  1819;  and  527  dollars 
and  72  cents,  not  until  the  autumn  of  1820.  These  payments  were  made,  not 
only  after  the  pendancy  of  the  suit,  which  was  notice  in  law^,  but  after  act\ial 
notice  of  the  claim  of  the  plaintiffs  must  be  taken  to  have  been  received.  They 
were,  therefore,  payments  ^nadc  by  the  defendant,  M.,  in  his  own  wrong,  and 
his  character  as  a  purchaser  will  not  protect  him.  A  plea  of  a  purchase  for 
a  valuable  consideration,  without  notice,  must  be  with  the  money  actually 
paid  :  or  else,  according  to  Lord  Hahowickk  you  are  not  hurt.  The  averment 
must  be,  nf)t  only  that  the  purcliaser  had  not  notice,  at  or  before  the  time 
of  the  execution  of  the  deeds,  but  that  the  pinvhase  money  was  paid  before 
notice.  There  must  not  only  be  a  denial  of  notice  before  the  purchase,  but 
a  denial  of  notice  before  the  payment  of  the  money.  Harrison  v.  Southcote 
1  Atk.  538.  Story  v.  Lord  Windsor,  2  Atk.  G30.  Even  if  the  purcliase- 
moncy  be  secured  to  be  paid,  yet  if  it  be  not  in  fact  paid,  before  notice,  the 


CHAP,  v.]  PHILLIPS  V.  PHILLIPS  511 


PHILLIPS  V.  PHILLIPS. 

In  Chancery,  before  Lord  Chancellor  Westbury/  1862. 

[4  De  Gex,  Fisher  &  Jones  208.] 

The  Lord  Chancellor  [Westbury.] — When  I  reserved  my  judgment 
at  the  conclusion  of  the  argument  in  this  case,  it  was  rather  out  of  respect 
to  that  argument  than  from  a  feeling  of  any  difficulty  with  regard  to 
the  question  that  had  been  so  strenuously  contested  before  me. 

The  case  is  a  very  simple  one.  The  plaintiff  claims  as  the  grantee 
of  an  annuity  granted  by  a  deed  dated  in  the  month  of  February,  1820, 
to  issue  out  of  certain  lands  in  the  County  of  Monmouth,  secured  by 
powers  of  distress  and  entry.  The  annuity  or  rent-charge  was  not  to  arise 
until  the  death  of  one  Rebecca  Phillips,  who  died  in  the  month  of 
December,  1839,  and  the  first  payment  of  the  annuity  became  due  on 
the  8th  of  March,  1840. 

The  case  was  argued  on  both  sides  on  the  admitted  basis  that  the  legal 
estate  was  outstanding  in  certain  incumbrancers,  and  is  still  outstanding. 
Subject  to  the  annuity  the  grantor  was  entitled  in  fee-simple  in  equity. 
In  February,  1821,  the  grantor  intermarried  with  one  Mary  Phillips. 
On  the  occasion  of  that  marriage,  a  settlement,  dated  in  February, 
1821,  was  executed,  and  under  this  deed  the  defendant's  claim;  and 
claim,  therefore,  as  purchasers  for  a  valuable  consideration.  No  pay- 
ment has  ever  been  made  in  respect  of  the  annuity. 

plea  of  a  purchase  for  valuable  consideration,  will  be  overrruled.  Hardingham 
V.  Nieholls,  3  Atk.  304."  Per  Chancellor  Kext  in  Jewett  v.  Pelmer,  1S23, 
7  Johns.  65,  67. 

*  "The  judgments  which  he  has  left  are  in  many  ways  unique.  Our  law 
reports  contain  no  more  perfect  examples  of  precise  and  lucid  statement, 
of  concise  reasoning,  or  of  polished  English ;  and  no  judge  has  ever  striven 
more  persistently  than  did  Lord  Westbury  to  bring  every  qiiestion  to  the 
test  of  principle,  and  to  restrain  within  due  limits  what  seemed  to  him 
the  excessive  authority  of  precedents.  His  habit  was  to  brush  aside,  or 
pass  by  unnoticed,  the  crowd  of  cases  which  had  accumulated  during  the 
argument,  to  treat  with  scant  respect  judicial  opinions  which  might  stand 
in  his  way,  and  to  come  to  his  decision  by  the  light  of  'a  few  elementary 
rules  of  law' — a  phrase  which  he  had  a  malicious  fondness  for  using  wlien 
about  to  reverse  Lord  Campbell.  Following  this  method,  indeed,  he  fre- 
quently decided  a  great  deal  more  than  the  facts  of  the  case  required,  and 
the  authority  of  his  judgments  has  been  thereby  much  weakened;  but  where 
he  had  a  comparatively  clear  field,  as  in  the  subject  of  domicile,  he  suc- 
ceeded in  building  up  a  gi'eat  portion  of  the  existing  law  (see  an  estimate 
of  his  judgments  in  Campbell  Smith's  Writings  by  the  Way,  p.  397).  With 
one  exception,  however,  the  cases  in  which  he  took  part  have  only  a  legal 
interest."  Article  on  Bethell,  Richard,  first  Lord  Westbury,  in  Diet.  Xatl. 
Biogi-aphy. 


512  PHILLIPS  V.  PHILLIPS  [part  i. 

The  bill  was  filed  within  twenty  years,  and  seeks  the  ordinary  relief 
applicable  to  the  case.  The  defendants  by  their  answer  insist  that  the 
deed  was  voluntary,  and  therefore  void  under  the  statute  of  Elizabeth 
as  against  them  in  their  character  of  purchasers  for  valuable  considera- 
tion, and  they  also  insist  upon  the  Statute  of  Limitations.  But  in  the 
answer  the  defence  of  purchase  for  valuable  consideration  without  notice 
is  not  attempted  to  be  raised. 

At  the  hearing,  an  affidavit  of  Mary  Phillips  and  another  person 
was  produced  denying  the  fact  of  notice  of  the  annuity  at  the  time  of 
the  grant  and  at  the  time  of  the  creation  of  the  marriage  settlement, 
and  the  contention  at  the  bar  was  that  the  defence  of  purchase  for 
valuable  consideration  without  notice  was  available  for  the  defendants, 
imder  these  circumstances,  and  ought  to  be  allowed  as  a  bar  to  the 
claim  by  the  Court.  The  Vice-Chancellor  in  his  judgment  refused  to 
admit  the  defence  of  the  purchase  for  valuable  consideration  without 
notice,  and  I  entirely  agree  with  him  in  the  conclusion  that  such  a  de- 
fence requires  to  be  pleaded  by  the  answer,  more  especially  where  an 
answer  has  been  put  in. 

But  I  do  not  mean  to  rest  my  decision  upon  that  particular  ground 
because  I  have  permitted  the  argument  to  proceed  with  reference  to  the 
general  proposition,  which  was  maintained  before  me  with  great  energy 
and  learning,  viz.,  that  the  doctrine  of  a  Court  of  Equity  was  this, 
that  it  would  give  no  relief  whatever  to  any  claimant  against  a  pur- 
chaser for  valuable  consideration  without  notice.  It  was  urged  upon 
me  that  authority  to  this  effect  was  to  be  found  in  some  recent  decisions 
of  this  Coiirt,  and  particularly  in  the  case  decided  at  the  Rolls  of  The 
Attorney-General  v.  Wilkins,  17  Beav.  285, 

I  undoubtedly  was  struck  with  the  novelty  and  extent  of  the  doctrine 
that  was  thus  advanced,  and  in  order  to  deal  with  the  argument  it  be- 
comes necessary  to  revert  to  elementary  principles.  I  take  it  to  be  a 
clear  proposition  that  every  conveyance  of  an  equitable  interest  is  an 
innocent  conveyance ;  that  is  to  say,  the  grant  of  a  person  entitled  merely 
in  equity  passes  only  that  which  he  is  justly  entitled  to,  and  no  more. 
If,  therefore,  a  person  seised  of  an  equitable  estate  (the  legal  estate  being 
outstanding),  makes  an  assurance  by  way  of  mortgage  or  grants  an 
annuity,  and  afterwards  conveys  the  whole  estate  to  a  purchaser,  he  can 
grant  to  the  purchaser  that  which  he  has,  viz.,  the  estate  subject  to  the 
mortgage  or  annuity,  and  no  more.  The  subsequent  grantee  takes  only 
that  which  is  left  in  the  grantor.  Hence  grantees  and  incumbrancers 
claiming  in  equity  take  and  are  ranked  according  to  the  dates  of  their 
securities;  and  the  maxim  applies,  "  Qui  prior  est  tempore  potior  est 
jure."  The  first  grantee  is  potior — that  is,  potentior.  He  has  a  better 
and  superior — because  a  prior — equity.  The  first  grantee  has  a  right  to 
be  paid  first,  and  it  is  quite  immaterial  whether  the  subsequent  incum- 
brancers at  the  time  when  they  took  their  securities  and  paid  their  money 
had  notice  of  the  first  incumbrance  or  not.     These  elementary  rules  are 


CHAP,  v.]  PHILLIPS  V.  PHILLIPS  513 

recognized  in  the  case  of  Brace  v.  Duchess  of  Marlborough,  2  P.  Wms. 
49J,  and  they  are  further  illustrated  by  the  familiar  doctrine  of  the  Court 
as  to  tacking  securities.  It  is  well  known  that  if  there  are  three  incum- 
brancers, and  the  third  incumbrancer,  at  the  time  of  his  incumbrance 
and  payment  of  his  money,  had  no  notice  of  the  second  incumbrance, 
then,  if  the  first  mortgagee  or  incumbrancer  has  the  legal  estate,  and  the 
third  pays  him  off,  and  takes  an  assignment  of  his  securities  and  a  con- 
veyance of  the  legal  estate,  he  is  entitled  to  tack  his  third  mortgage  to 
the  first  mortgage  which  he  has  acquired,  and  to  exclude  the  intermediate 
incumbrancer.  But  this  doctrine  is  limited  to  the  case  where  the  first 
mortgagee  has  the  legal  title;  for  if  the  first  mortgagee  has  not  the 
legal  title,  the  third  does  not  by  the  transfer  obtain  the  legal  title,  and  the 
third  mortgagee  by  payment  off  of  the  first  acquires  no  priority  over  the 
second.  Now  the  defence  of  a  purchaser  for  valuable  consideration  is 
the  creature  of  a  Court  of  Equity,  and  it  can  never  be  used  in  a  manner 
at  variance  with  the  elementary  rules  which  have  already  been  stated. 
It  seems  at  first  to  have  been  used  as  a  shield  against  the  claim  in  equity 
of  persons  having  a  legal  title.  Bassett  v.  Nosworthy,  Finch,  102,  S.  C. 
Bassett  v.  Nosworthy,  2  White  &  T.  L.  C.  1,  is  if  not  the  earliest,  the  best 
early  reported  case  on  the  subject.  There  the  plaintiff  claimed  under  a 
legal  title,  and  this  circumstance,  together  with  the  maxim  which  I  have 
referred  to,  probably  gave  rise  to  the  notion  that  this  defence  was  good 
only  against  the  legal  title.  But  there  appear  to  be  three  cases  in  which 
the  use  of  this  defence  is  most  familiar: — 

First,  where  an  application  is  made  to  an  auxiliary  jurisdiction  of  the 
Court  by  the  possessor  of  a  legal  title,  as  by  an  heir-at-law  (which  was 
the  case  in  Bassett  v.  Nosworthy,  Finch,  102;  S.  C,  2  White  &  T.  L.  C. 
1,)  or  by  a  tenant  for  life  for  the  delivery  of  title-deeds  (which  was 
the  case  of  Wallwyn  v.  Lee,  9  Ves.  24,)  and  the  defendant  pleads  that  he 
is  a  l}ona  fide  purchaser  for  valuable  consideration  without  notice.  In 
such  a  case  the  defence  is  good,  and  the  reason  given  is  that  as  against  a 
purchaser  for  valuable  consideration  without  notice  the  Court  gives  no 
assistance;  that  is,  no  assistance  to  the  legal  title.  But  this  rule  does  not 
apply  where  the  Court  exercises  a  legal  jurisdiction  concurrently  with 
Courts  of  Law.  Thus  it  was  decided  by  Lord  Titurlow,  in  Williams  v. 
Lambe,  3  B.  C.  C.  264,  that  the  defence  could  not  be  pleaded  to  a  bill  for 
dower;  and  by  Sir.  J.  Leach,  in  Collins  v.  Archer,  1  R.  &  M.  284,  that  it 
was  no  answer  to  a  bill  for  fines.  In  those  cases  the  Court  of  Equity  was 
not  a?.ked  to  give  the  plaintiff  any  equitable  as  distinguished  from  legal 
relief. 

The  second  class  of  cases  is  the  ordinary  one  of  several  purchasers  or 
incumbrancers  each  claiming  in  equity,  and  one  who  is  later  and  last  in 
time  succeeds  in  obtaining  an  outstanding  legal  estate  not  held  upon 
existing  trusts  or  a  judgment,  or  any  other  legal  advantage  the  possession 
of  which  may  be  a  protection  to  himself  or  an  embarrassment  to  otheT 
claimants.     He  will  not  be  deprived  of  this  advantage  by  a  Court  of 


514  PHILLIPS  V.  PHILLIPS  [part  i. 

Equity.  To  a  bill  filed  against  him  for  this  purpose  by  a  prior  purchaser 
or  incumbrancer,  the  defendant  may  maintain  the  plea  of  purchase  for 
valuable  consideration  without  notice;  for  the  principle  is,  that  a  Court 
of  Equity  will  not  disarm  a  purchaser,  that  is,  will  not  take  from  him  the 
shield  of  any  legal  advantage.  This  is  the  common  doctrine  of  the 
tahula  in  naufragio. 

Thirdly,  where  there  are  circumstances  that  give  rise  to  an  equity  as. 
distinguished  from  an  equitable  estate,— as,  for  example,  an  equity  ta 
set  aside  a  deed  for  fraud,  or  to  correct  it  for  mistake, — and  the  pur- 
chaser under  the  instrument  maintains  the  plea  of  purchase  for  valuable 
consideration  without  notice,  the  Court  will  not  interfere. 

Now  there  are  three  cases  in  which  the  defence  in  question  is  most 
commonly  found.    None  of  them  involve  the  case  that  is  now  before  me. 

It  was  indeed  said  at  the  bar  that  the  defendants,  being  in  possession, 
had  a  legal  advantage  in  respect  of  the  possession,  of  which  they  ought 
not  to  be  deprived.  But  that  is  to  confound  the  subject  of  adjudication 
with  the  means  of  determining  it.  The  possession  is  the  thing  which  ia 
the  subject  of  controversy,  and  is  to  be  awarded  by  the  Court  to  one  or 
to  the  other.  But  the  subject  of  controversy,  and  the  means  of  deter- 
mining the  right  to  that  subject,  are  perfectly  different.  The  argument, 
in  fact,  amoimts  to  this :  "  T  ought  not  to  be  deprived  of  possession,  be- 
cause I  have  possession."  The  purchaser  will  not  be  deprived  of  any- 
thing that  gives  him  a  legal  right  to  the  possession,  but  the  possession 
itself  must  not  be  confounded  with  the  right  to  it. 

The  case  therefore  that  I  have  to  decide  is,  the  ordinary  case  of  a 
person  claiming  under  an  innocent  equitable  conveyance  that  interest 
which  existed  in  the  grantor  at  the  time  when  that  conveyance  was  made. 
But,  as  i  have  already  said,  that  interest  was  diminished  by  the  estate 
that  had  been  previously  granted  to  the  annuitant,  and  as  there  was  no 
ground  tor  pretending  that  the  deed  creating  the  annuity  was  a 
voluntary  deed,  so  there  is  no  ground  whatever  for  contending  that  the 
estate  of  the  person  taking  under  the  subsequent  marriage  settlement  is 
not  to  be  treated  by  this  Court,  being  an  equitable  estate,  as  subject  to 
the  antecedent  annuity,  just  as  effectually  as  if  the  annuity  itself  had 
been  noticed  and  excepted  out  of  the  operation  of  the  subsequent  instru- 
ment. 

I  have  no  difficulty,  therefore,  in  holding  that  the  plea  of  purchase  for 
valuable  consideration  is  upon  principle  not  at  all  applicable  to  the  case 
before  me,  even  if  I  could  take  notice  of  it  as  having  been  rightly 
and  regularly  raised. 

We  next  come  to  examine  the  authorities  upon  which  the  defence  re- 
lies. Now,  undoubtedly,  1  cannot  assent  to  some  observations  which  I 
find  attributed  to  the  Master  of  the  Rolls  in  the  report  of  the  case  of  The 
Attorney-General  v.  Wilkins,  17  Beav.  285,  but  to  the  decision  of  that 
case,  as  explained  by  his  Honor  in  the  subsequent  case  of  Colyer  v. 
Finch,  19  Beav.  500,  I  sec  no  reasonable  objection,  and  the  principles  that 


CHAP,  v.]  EYRE  V.  BURMESTER  akd  others  515 

I  have  here  been  referring  to  are  fully  explained  and  acted  on  by  the 
Master  of  the  Rolls  in  the  case  of  Colyer  v.  Finch,  19  Beav.  500.  It 
is  impossible,  therefore,  to  suppose  that  he  intended  to  lay  down  any- 
thing in  the  case  of  The  Attorney-General  v.  Wilkins,  17  Beav.  285,  which 
is  at  variance  with  the  ordinary  rules  of  the  Court  as  I  have  already  ex- 
plained them,  or  which  could  give  countenance  to  the  argument  that  has 
been  raised  before  me  at  the  bar. 

I  have  consequently  no  difficulty  in  holding  that  the  decree  of  his 
Honor  the  Vice-Chancellor  is  right  upon  the  grounds  on  which  he  placed 
it  in  the  Court  below,  and  that  also  it  would  have  been  right  if  he  had 
considered  the  grounds  wdiich  have  been  urged  before  me  in  support  of 
this  petition  of  rehearing.  I  therefore  affirm  the  decree  and  dismiss  the 
petition  of  rehearing;  but  inasmuch  as  the  plaintiff  sues  in  forma  pau- 
peris, of  course  it  must  be  dismissed  without  costs. 


EYRE  V.  BURMESTER  and  others. 
In  the  House  of  Lords,  1862. 
[10  Clark's  House  of  Lords  90.] 

The  Lord  Chancellor  [Westbury]  (20  May). — My  Lords,  the  facts 
material  for  the  decision  of  this  appeal  are  few,  and  may  be  shortly 
stated.  In  October  1854  the  late  Mr.  John  Sadlier  made  a  mortgage  to 
the  Appellant,  Mr.  Eyre,  of  certain  estates  in  Ireland,  to  secure  the  pay- 
ment by  Sadlier  to  Eyre  of  considerable  sums  of  money.  Afterwards, 
and  in  September  1855,  John  Sadlier  being  very  largely  indebted  to  the 
London  and  County  Joint  Stock  Bank,  conveyed  these  estates  and  other 
large  estates  in  Ireland  to  the  Respondents,  who  represent  the  bank,  to 
secure  such  debt  and  farther  advances  then  made  by  the  bank  to  Sadlier. 
No  mention  was  made  by  Sadlier  to  the  Respondents  of  the  fact  of  the 
mortgage  to  Eyre;  but  the  estates  in  question  were  conveyed  by  Sadlier 
to  them  as  free  from  any  incumbrance.  Before  this  mortgage  to  the 
bank  was  completed  by  registration  of  the  deeds  in  Ireland,  the  fact  of 
Eyre's  mortgage  was  discovered  by  the  agents  of  the  Respondents,  who 
therefore  refused  to  allow  the  arrangement  between  Sadlier  and  them- 
selves to  remain  unless  he  obtained  a  release  from  Eyre  of  the  estates  in 
question.  This  Sadlier  engaged  to  do;  and  he  prevailed  upon  Eyre  to 
execute  a  deed  of  reconveyance  to  Sadlier  himself  of  these  estates,  in 
consideration  of  Eyre's  receiving  from  Sadlier  other  securities  of  equal 
or  greater  value.  The  substituted  securities  consisted  chiefly  of  a  large 
number  of  shares  in  the  Royal  Swedish  Railway,  and  of  a  promissory 
note  for  £12,000,  expressed  to  be  made  and  signed  by  Mr.  Dargon.    But 


516  EYEE  V.  BURMESTER  and  others  [part  i. 

the  shares  were  fictitious,  having  been  fabricated  by  John  Sadlier  for  the 
purpose,  and  the  promissory  note  was  a  forgery.  An  actual  fraud  of  a 
gross  and  criminal  character  was  therefore  committed  by  Sadlier  upon 
Eyre;  and  by  means  of  that  fraud  the  release  of  Eyre's  mortgage  was 
obtained. 

The  release  was  obtained  in  a  deed  dated  the  5th,  but  executed  on  the 
13th  of  October  1S55.  By  it  Mr.  Eyre  reconveyed,  granted,  released,  and 
confirmed  unto  John  Sadlier  the  estates  comprised  in  the  mortgage  deed 
of  October  1854.  No  consideration  for  this  reconveyance  is  expressed  in 
the  deed  itself,  but  the  real  agreement  between  the  parties  is  contained  in 
a  contemporaneous  agreement  of  the  6th  of  October  1855. 

After  the  execution  of  this  deed  of  reconveyance  to  John  Sadlier  no 
farther  conveyance  was  made  by  Sadlier  to  the  Respondents.  They  were 
assured  of  the  fact  of  the  reconveyance,  and  the  mortgage  was  either 
completed  or  allowed  to  continue.  The  estate  so  reconveyed  by  Eyre 
remained  in  John  Sadlier  until  he  committed  suicide  in  the  month  of 
February  1856.     On  that  event,  the  fraud  of  Sadlier  was  discovered. 

These  estates  have  been  since  sold  by  an  order  of  the  Incumbered 
Estates  Court  in  Ireland.  With  respect  to  the  proceeds  of  that  sale,  a 
contest  has  arisen  between  Eyre  and  the  London  and  County  Bank ;  Eyre 
claims  the  benefit  of  his  original  mortgage,  and  insists  that  the  reconvey- 
ance is  void  for  fraud.  The  bank  directors  claim  the  benefit  of  the  re- 
conveyance as  purchasers  for  valuable  consideration,  without  notice  of 
the  fraud  committed  by  Sadlier  on  Eyre,  and  on  that  ground  the  Court 
below  has  given  judgment  in  their  favour. 

A  purchaser  for  valuable  consideration  without  notice,  will  not  be  de- 
prived by  a  Court  of  Equity  of  any  advantage  at  law  which  he  has  fairly 
obtained  for  his  protection.  But  in  the  present  case  the  estate  recon- 
veyed by  Eyre,  remained  in  Sadlier,  and  was  never  conveyed  by  Sadlier 
to  the  bank.  In  answer  to  this  objection,  the  Respondents  insist  on  the 
estoppel  created  by  the  previous  conveyance.  This  answer  would  be  good 
as  against  Sadlier  and  all  claiming  under  him.  The  estoppel  created  by 
the  antecedent  contract  and  conveyance  by  Sadlier  would  bind  parties 
and  privies,  that  is,  Sadlier  and  those  claiming  under  him.  But  the 
claim  of  Eyre  is  against  Sadlier  by  paramount  right,  to  recover  the 
estate  of  which  Eyre  had  been  deprived  by  fraud,  and  Sadlier  acquired 
no  interest  to  feed  his  prior  contract  by  virtue  of  that  fraudulent  trans- 
action. 

It  is  urged  by  the  Respondents  that  the  reconveyance  when  made  by 
Eyre,  enabled  Sadlier  to  obtain  money  from  the  bank,  and  that  the 
mortgage  was  completed  on  the  faith  of  the  reconveyance.  The  evidence 
does  not  appear  to  me  to  prove  either  of  these  positions.  But  granting 
that  it  does,  the  reconveyance  was  to  Sadlier  and  was  obtained  by  him  by 
fraud  and  covin.  There  was  no  contract  or  direct  communication  be- 
tween the  Rcgpoinlonts  and  Eyre,  who  acted  with  perfect  l>ona  fides.  The 
Respondents  left  Snillicr  in  ()])tain  the  reconveyance,  and  they  can  claim 


CHAP,  v.]  CAVE  V.  CAVE  517 

the  benefit  of  it  only  under  Sadlier,  whose  act  they  must  take  as  it  is.  If 
(which  is  not  proved)  they  had  advanced  money  to  Sadlier  on  the  faith 
of  the  release  and  their  actual  possession  of  it,  but  without  taking  a  con- 
veyance, they  might  have  had  a  lien  on  the  deed  itself;  but  their  interest 
in  the  estate  being  equitable  only,  would  still,  in  my  opinion,  have  been 
subject  to  the  superior  equity  of  Eyre.  Whilst  the  estate  remained  in 
Sadlier,  so  long-  was  it  liable  to  be  pursued  and  recovered  by  Eyre.  But 
there  is  no  sufficient  proof  of  any  such  advance  by  the  bank;  and  the 
only  foundation  of  the  bank's  claim,  is  the  mortgage  by  Sadlier  prior  to 
the  deed  of  reconveyance.  That  mortgage  and  contract  would  bind  any 
interest  subsequently  acquired  by  Sadlier.  But  under  the  reconveyance 
he  obtained  none;  for,  as  between  Sadlier  and  Eyre,  the  latter  was  still 
the  owner,  and  might  at  any  time  during  the  life  of  Sadlier,  by  bill  in 
equity,  have  set  aside  the  release,  and  obtained  a  reconveyance  of  the 
estate,  and  an  interim  injunction  to  restrain  any  alienation  of  it  by  Sad- 
lier. This  equitable  title  still  remains  unimpaired,  and  ought  to  be  pre- 
ferred to  any  claim  by  the  bank. 

I  therefore  advise  your  Lordships  that  the  orders  of  the  Court  below 
be  reversed,  and  that  it  be  declared  that  the  claim  of  the  Appellant  to 
priority  in  respect  of  his  mortgage,  ought  to  have  been  allowed ;  and  that 
the  case  be  remitted,  with  that  declaration,  to  the  Landed  Estates  Court. 
If  the  Appellant  has  obtained  any  additional  security  under  the  agree- 
ment of  the  6th  October  1855,  not  comprised  in  his  original  mortgage, 
that  must  be  given  up  or  accounted  for  to  the  bank.* 


CAVE  V.  CAVE. 

In  the  Chancery  Division,  1880. 

[Law  Reports,  15  Chancery  Division  639.] 

The  plaintiffs  were  cestuis  que  trusient  under  the  settlement  executed 
on  the  marriage  of  Mr.  and  Mrs.  Frederick  Cave.  The  defendant, 
Charles  Cave,  was  the  sole  trustee.  Part  of  the  trust  funds  which  came 
into  his  hands,  he  invested  in  certain  freeholds,  improperly  acting  in 
the  transaction  both  as  trustee  and  as  solicitor  for  himself  and  Frederick 
Cave,  in  whose  name  the  conveyance  was  made  though  the  deeds  were 
held  by  Charles.  Later  other  lands  were  purchased  under  similar  illegal 
circumstances.  After  these  purchases,  the  defendant  Chaplin,  Charles 
Cave,  acting  as  his  solicitor,  took  a  mortgage  from  Frederick  on  this 
land,  and  the  question  arose  whether  or  not  the  knowledge  of  his  solicitor, 
Charles  Cave,  was  constructive  notice  to  him.     Subsequently,  the  other 

*The  concurring  opinions  of  Lords  Cranworth,  Chelmsford  and  Kings- 
down  are  omitted,  v 


618  CAVE  V.  CAVE  [part  i. 

defendants  took  mortgages  on  the  same  property,  without  notice  of  the 
first  mortgage. 

In  April,  1879,  Frederick  Cave  became  a  bankrupt,  and  the  Plaintiffs 
claimed  to  prove  against  his  estate  for  these  breaches  of  trust,  and  they 
also  claimed  priority  over  all  the  liens  claimed  on  the  land  by  the  several 
Defendants,  on  the  ground  that  when  they  took  their  charges  they  had 
constructive  notice  of  the  breach  of  trust. 

The  Defendants  denied  that  they  had  notice,  and  relied  especially  on 
the  fraud  of  Charles  Cave  as  a  circumstance  raising  a  presumption  that 
he  would  not  have  communicated  the  circumstances  of  his  fraud  to  the 
mortgagees.' 

Fry,  J.,  stated  the  facts,  and  continued : — ^ 

Between  the  Plaintiff  and  Chaplin  the  course  of  argument  has  been 
this :  It  has  been  proved  that  the  same  solicitor,  Mr.  Charles  Cave,  who 
was  also  surviving  trustee,  acted  in  the  matter  of  Chaplin's  mortgage  both 
for  Chaplin  and  for  the  mortgagor,  Frederick  Cave.  The  Plaintiffs  say, 
"  You  employed  the  same  solicitor  as  the  mortgagor,  and  you  therefore 
had  knowledge  of  the  circumstances  affecting  Frederick  Cave's  title 
against  us."  To  that  Chaplin  replies  that  Charles  Cave  was  a  party 
to  a  fraud,  and  that  the  circumstances  are  such  as  to  render  it  impossible 
to  conceive  that  the  facts  which  were  known  to  Charles  Cave  were 
communicated  by  him  to  Chaplin. 

The  question  I  have  to  determine  is  whether  the  Defendant  Chaplin 
is  right  or  wrong  in  that  contention. 

The  doctrine  applicable  to  the  question  has  been  commonly  called 
that  of  constructive  notice.  Lord  Cheljisford,  in  the  case  of  Espin  v. 
Pemberton,  3  De  G.  &  J.  547,  considered  that  to  be  an  inaccurate  descrip- 
tion, and  thought  that  the  expression  "  imputed  notice  "  was  the  correct 
one.  It  is  not  very  material  to  consider  which  of  the  two  terms  is  the 
more  accurate,  because  there  is  undoubtedly  an  exception  to  the  con- 
struction or  imputation  of  notice  from  the  agent  to  the  principal,  that 
exception  arising  in  the  case  of  such  conduct  by  the  agent  as  raises  a  con- 
clusive presumption  that  he  would  not  communicate  the  fact  in  contro- 
versy. This  exception  has  been  put  in  two  ways.  In  the  very  well- 
known  case  of  Rolland  v.  Hart,  Law  Eep.  6  Ch.  678,  Lord  Hatiierley 
put  it  substantially  in  this  way,  that  you  must  look  at  the  circumstances 
of  the  case,  and  inquire  whether  the  Court  can  see  that  the  solicitor 
intended  a  fraud,  which  would  require  the  suppression  of  the  knowledge 
of  the  incumbrance  from  the  person  upon  whom  he  was  committing  the 
fraud.  In  Thompson  v.  Cartwright,  33  Beav.  178,  the  late  Master  of 
the  Rolls  put  it  rather  differently,  and  it  would  appear  that  in  his  view 
you  must  inquire  whether  there  are  such  circumstances  in  the  case, 
independently  of  the  fact  under  inquiry,  as  to  raise  an  inevitable  con- 
clusion that  the  notice  had  not  been  communicated.     In  the  one  view 

*The  statement  of  facts  lias  been  ahiidyed. 

''The  ()j)eiiiii;,'  sciilciici's  of  tlic  ni)iiii()n  are  omitted. 


CHAP,  v.]  CAVE  V.  CAVE  519 

notice  is  not  imputed,  because  the  circumstances  are  such  as  not  to 
raise  the  conclusion  of  law,  which  does  ordinarily  arise  from  the  mere 
existence  of  notice  to  the  agent;  in  the  other  view — that  of  Lord 
Chelmsford  and  Lord  Hatiierly — the  act  done  by  the  agent  is  such  as 
cannot  be  said  to  be  done  by  him  in  his  character  of  agent,  but  is  done 
by  him  in  the  character  of  a  party  to  an  independent  fraud  on  his  princi- 
pal, and  that  is  not  to  be  imputed  to  the  principal  as  an  act  done  by  his 
agent. 

Those  being  the  principles  to  the  decision  of  this  case,  I  must  ask 
myself  what  are  the  circumstances.' 

The  conclusion  I  arrive  at  is,  that  Chaplin  has  sustained  the  burden 
cast  upon  him  of  proving  that  the  circumstances  are  such  as  repel  the 
construction  or  imputation  to  the  principal  of  notice  to  the  agent. 
Therefore  I  hold  that  Mr.  Chaplin's  mortgage  has  a  priority  over  the 
Plaintiifs'. 

The  next  question  arises  between  the  Plaintiffs  and  White,  and  also  be- 
tween all  the  other  incumbrancers  upon  the  fund.  That  question  is  of 
this  nature :  all  these  incumbrancers  allege  that  they  are  purchasers  for 
value  without  notice,  and  they  plead  that,  being  purchasers  for  value 
without  notice,  they  have  a  sufficient  and  conclusive  defence.  That 
defence,  as  we  all  know,  has  been  the  subject  of  a  great  deal  of  de- 
cision, and  it  is  by  no  means  easy  to  harmonise  the  authorities  and  the 
opinions  expressed  upon  the  subject.  Criticisms  upon  old  cases  lie 
many  strata  deep,  and  eminent  Lord  Chancellors  have  expressed  diamet- 
rically opposite  conclusions  upon  the  same  question.  The  case  of  Phillips 
V.  Phillips,  4  D.  F.  &  J.  208,  is  the  one  which  has  been  principally  urged 
before  me,  and  that,  as  being  the  decision  of  a  Lord  Chancellor,  is 
binding  upon  me,  notwithstanding  the  subsequent  comments  upon  it  of 
Lord  St.  Leonards  in  his  writings.  That  case  seems  to  me  to  have  laid 
down  this  principle,  that,  as  between  equitable  interests,  the  defence  will 
not  prevail  where  the  circumstances  are  such  as  to  require  that  this  Court 
should  determine  the  priorities  between  them.  The  classes  of  cases  to 
Avhich  the  defence  will  apply  are  other  than  that." 

Now  the  question  I  have  to  determine  is  this,  is  the  right  of  the 
parties  to  follow  this  money  into  the  land  an  equitable  estate  or  interest, 
or  is  it  an  equity  as  distinguished  from  an  equitable  estate?  The 
decision  of  Lord  Eldon  many  years  ago  appears  to  me  to  be  perfectly 
conclusive  upon  the  law.  I  refer  to  the  case  of  Lewis  v.  Madocks, 
17  Ves.  48,  57,  where  on  further  consideration  directions  had  been  given 
for  an  inquiry  as  to  certain  trust  moneys  which  had  gone  into  land, 
the  wife  claiming  an  interest  in  the  land  as  against  the  heir;  and  Lord 
Eldon  said  this :  "The  claim  of  the  wife  is  put  in  this  way,  that  personal 
property  bomid  by  the  trust  or  obligation,  whatever  it  is  called,  of  this 
bond  is  traced  into  the  purchase  of  a  real  estate,  which  estate  must 

'  The  discussion  of  the  circumstances  is  omitted. 

-  A  part  of  the  opi«ion,  quoting  from  Lord  Westbury,  has  been  omitted. 


620  MUERAY  &  WINTER  v.  BALLOU  &  HUNT       [part  i. 

therefore  be  hers;  but  I  do  not  know  any  case  in  its  circumstances 
sufficiently  like  this  to  authorize  me  to  hold  that  doctrine.  I  am  pre- 
pared to  say  that  the  personal  estate  bound  by  this  obligation,  and  which 
has  been  laid  out  in  this  real  estate,  is  personal  property  that  may  be 
demanded  out  of  the  real  estate  that  the  estate  is  chargeable  with  it; 
but  it  was  not  so  purchased  with  it,  that  the  estate  should  be  decreed  to 
belong  not  to  the  heir  but  to  the  wife."  In  other  words,  his  Lordship 
held  that  the  estate  descended  to  the  heir  subject  to  the  charge.  That 
charge  appears  to  me  to  be  a  charge  in  equity,  or,  in  other  words,  an 
equitable  estate  or  interest.  Very  similar  was  the  question  which  Vice- 
Chancellor  Kindersley  had  to  determine  in  the  case  of  Rice  v.  Rice, 
2  Drew,  73,  He  had  there  to  adjudicate  between  two  equities,  one 
arising  from  the  right  of  an  unpaid  purchaser  to  come  upon  the  land, 
and  the  other  arising  by  contract  creating  an  equitable  mortgage.  It 
is  a  very  leading  and  instructive  case,  in  which  the  Vice- Chancellor 
considered  very  fully  the  application  of  the  maxim,  "Qui  prior  est 
tempore  potior  est  jure,"  and  laid  it  down  thus:  "To  lay  down  the  rule 
with  perfect  accuracy,  I  think  it  should  be  stated  in  some  such  form 
as  this.  As  between  persons  having  only  equitable  interests,  if  their 
equities  are  in  all  other  respects  equal,  priority  of  time  gives  the  better 
equity,  or,  '  Qui  prior  est  tempore  potior  est  jure.'  "^ 

In  my  judgment,  the  right  of  a  vendor  for  the  unpaid  purchase-money 
is  an  equitable  lien,  and  the  right  of  the  cestui  que  trust,  whose  trust 
money  has  been  invested  in  the  lands,  is  also  an  equitable  lien.  I  do  not 
think  I  can  really  distinguish  this  equity  from  such  an  equitable  lien  as 
the  Vice- Chancellor  held  to  be  in  that  case  an  equitable  estate  or  in- 
terest of  the  same  description  as  the  equity  of  an  equitable  mortgagee. 
Therefore  I  shall  conclude  that,  within  the  case  of  Phillips  v.  Phillips, 
4  D.  F.  &  J.  208,  the  interest  of  the  Plaintiff  in  this  case  is  an  equitable 
interest,  and  not  merely  an  equity  like  the  equity  to  set  aside  a  deed, 
and  therefore  it  must  take  its  priority  according  to  the  priority  of  date. 


MURRAY  AND  WINTER  v.  BALLOU  and  HUNT. 

In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  1815. 

[1  Johnson's  Chancery  5G6.] 

The  Chancellor  [Kent].  The  purchase,  by  Ballou,  of  Winter  was 
made  in  August,  1810.  The  lot  purchased  was  held,  at  the  time,  by 
Winter,  in  trust,  for  Temperance  Green ;  and  a  suit  was  then,  and 
for  a  year  preceding  had  been,  pending  in  this  court  by  Mrs.   Green 

'Justice  Fry  lioio  made  a  further  quotation  from  Rice  v.  Rice,  which  is 
j)rintf'(l   in  full,  supra. 


CHAP,  v.]      MirREAY  &  WINTEE  v.  BALLOU  &  HUNT  521 

against  Winter,  charfiing  him  with  a  breach  of  trust,  and  praying  that 
his  authority  as  trustee,  might  cease;  and  an  injunction  had  been  issued 
and  served,  enjoining  him  from  any  sale,  disposition,  or  use  of  any  of 
the  lands  or  securities  held  by  him  in  trust.  The  plaintiff,  Murray,  was, 
afterwards,  appointed  receiver,  with  authority  to  sue;  and  upon  a  refer- 
ence and  report,  which  took  place  in  the  progress  of  the  suit,  Winter  was 
found  in  arrcar  to  the  amount  of  20,510  dollars;  and  the  amount  of  the 
above  sale  to  Ballou,  as  being  invalid  and  not  binding  on  the  cestui  que 
trust,  was  not  allowed  as  a  charge  to  Winter.  By  the  final  decree.  Win- 
ter was  ordered  to  convey  and  surrender  to  Mary  Green  and  Henry 
Green,  the  person  for  that  purpose  appointed  by  Mrs.  Green,  all  the 
property  and  interest  whatever  held  by  him  in  trust. 

The  suit  so  commenced  against  Winter,  having  been  in  a  course  of 
continued  and  diligent  prosecution,  and  having  been  finally  conducted 
to  a  decree  by  which  the  charges  in  the  bill  were  established,  a  question 
arises,  and  has  been  discussed  in  this  case,  whether  the  purchase  by  Bal- 
lou, of  part  of  the  trust  property,  pendente  lite,  ie  binding  on  the  cestui/ 
que  trust? 

Ballou  has,  in  his  answer,  denied  any  knowledge  of  the  suit  at  the 
time  of  his  purchase.  There  is  no  proof  to  contradict  the  answer,  and  it 
is  to  be  taken  for  true.  But  though  he  had  no  knowledge  of  the  suit,  it 
is  not  pretended  that  he  was  ignorant  of  the  existence  of  the  trust ;  and 
it  is  to  be  presumed,  from  his  silence,  that  when  he  purchased  from 
Winter,  he  knew  that  Winter  held  and  sold  the  land,  not  in  his  own  right, 
but  as  trustee.  The  bill  charges,  that  it  was  generally  known,  at  the  time 
of  the  sale,  that  W^inter's  authority  was  questioned.  The  answer  goes  no 
further  than  to  deny  any  knowledge  of  the  chancery  suit,  or  of  the  in- 
junction, or  of  any  suspension  or  defect  of  power  in  Winter  to  sell.  The 
answer  of  Hunt  is  to  the  same  limited  extent ;  and  the  probability  is,  that 
it  was  a  matter  of  public  notoriety  at  the  time,  that  Winter  held  the 
large  real  estate  in  his  possession  as  a  trustee. 

It  has  been  said  by  the  counsel  for  the  plaintiffs,  that  Ballou  was 
chargeable  with  notice  of  the  trust,  by  means  of  the  registry  of  the  deed 
from  Heatley  to  Mrs.  Green,  which  recited  the  declaration  of  trust  exe- 
cuted by  Winter.  This  deed,  containing  this  recital,  was  registered  on 
the  9th  of  April,  1810,  but  I  cannot  perceive  any  justice  in  obliging  Bal- 
lou to  take  notice  of  the  contents  of  that  deed.  By  what  clue  was  he 
to  be  directed  to  look  into  the  deed  froin  Heatley  to  Mrs.  Green?  He  was 
dealing  with  Winter;  and  supposing  Winter's  trust  to  be,  otherwise, 
totally  unknown  to  him,  he  might  as  well  be  required  to  examine  the 
contents  of  every  deed  on  record.  If  there  had  been  any  deed  on  record 
to  which  Winter  was  a  party,  he  would  have  had  a  specific  object  and 
guide  for  inquiry;  cceca  regens  filo  vestigia.  I  have,  therefore,  not 
thought  it  reasonable  to  charge  Ballou  with  a  knowledge  of  the  existing 
trust,  by  reason  of  the  registry  of  Heatley's  deed,  but  rather  to  infer 
that  knowledge  from  what  is  charged  in  the  bill,  and  from  the  silence 


522  MUKRAY  &  WINTER  v.  BALLOU  &  HUNT       [part  i. 

and  the  strong-  implied  admission  in  the  answer.  The  inference  from 
the  answer  is  decisive.  If  a  party  means  to  defend  himself,  on  the 
ground  that  he  was  a  bona  fide  purchaser  for  a  valuable  consideration, 
without  notice  of  a  trust,  he  must  deny  the  fact  of  notice,  and  of  every 
circumstance  from  which  it  can  be  inferred.  Bodmin  v.  Vandenbendy, 
1  Vern.  179 ;  Anon.  2  Vent.  361 ;  3  P.  Wms.  244.  n ;  2  Vesey,  jun.  458 ;  9 
Vesey,  jun.  32.  And  if  notice  of  the  trust  existed  when  the  purchase 
was  made,  then  the  general  rule  is,  that  the  purchaser  becomes  himself 
the  trustee,  notwithstanding  any  consideration  paid;  Saunders  v.  De- 
liew,  2  Vern.  271 ;  2  Fonb.  152,  153 ;  and,  though  he  may  not,  perhaps, 
be  bound,  in  most  cases,  if  the  sale  is  fair,  to  look  to  the  application  of 
the  moneys,  yet,  if  the  trust  be  suspended  by  process  of  the  court,  and 
the  sale  be  made,  as  it  was  here,  in  contempt  of  that  process,  the  pur- 
chaser, with  notice,  ought  not  to  be  allowed  to  defeat  it.  The  question 
of  notice  of  the  trust  is  also  material,  inasmuch  as  the  purchaser's 
knowledge  of  it  goes  to  lessen  or  destroy  the  hardship,  if  any  there  should 
be,  in  the  application  of  the  maxim,  caveat  emptor.  If  every  man  pur- 
chases at  his  peril,  and  is  bound  to  look  to  the  title  and  the  competency 
of  the  seller,  the  duty  is  the  stronger,  if  he  knowingly  purchases 
of  one  acting  as  agent  or  trustee  for  others,  for  then  he  is  bound  to 
look  into  the  validity  and  the  continuance  of  the  authority,  and  to 
call  for  an  exi)lanation  of  the  nature  and  existing  circumstances  of 
the  trust. 

But  it  will  not  be  necessary  to  rest  the  cause  on  this  ground.  The 
other  point,  which  has  been  pressed  for  consideration,  appears  to  be  alto- 
gether conclusive.  Admitting  that  Ballou  had  no  knowledge,  in  fact,  of 
the  suit  of  Mrs.  Green  against  Winter,  when  he  made  the  purchase,  he  is, 
nevertheless,  chargeable  with  legal  or  constructive  notice,  so  as  to  render 
his  purchase  subject  to  the  event  of  that  suit.  The  established  rule  is, 
that  a  lis  pendens,  duly  prosecuted,  and  not  collusive,  is  notice  to  a  pur- 
chaser so  as  to  affect  and  bind  his  interest  by  the  decree;  and  the  lis 
pendens  begins  from  the  service  of  the  subpoena  after  the  bill  is  filed. 

The  counsel  for  the  defendants  have  made  loud  complaints  of  the  in- 
justice of  this  rule,  but  the  complaint  was  not  properly  addressed  to  me, 
for  if  it  is  a  well-settled  rule,  I  am  bound  to  apply  it,  and  it  is  not  in  my 
power  to  dispense  with  it.  I  have  no  doubt  the  rule  will  sometimes 
operate  with  hardship  upon  a  purchaser  without  actual  notice;  but  this 
seems  to  be  one  of  the  cases  in  which  private  mischief  must  yield  to 
general  convenience;  and,  most  probably,  the  necessity  of  such  a  hard 
application  of  the  rule  will  not  arise  in  one  out  of  a  thousand  instances. 
On  the  other  hand,  we  may  bo  assured  the  rule  would  not  have  existed, 
and  have  been  supported  for  centuries,  if  it  had  not  been  founded  in 
great  public  utility.  Without  it,  as  has  been  observed  in  some  of  the 
cases,  a  man,  upon  the  service  of  a  subprena,  might  alienate  his  lands, 
and  prevent  the  justice  of  the  court.  Its  decrees  might  be  wholly  evaded. 
In  this  very  case,  the  trustee  had  been  charged  with  a  gross  breach  of 


CHAP,  v.]      MUREAY  &  WINTER  v.  BALLOU  &  HUNT  523 

his  trust,  and  had  been  enjoined  by  the  process  of  the  court,  six  months 
before  the  sale  in  question,  from  any  further  sales.  If  his  subsequent 
sales  are  to  be  held  valid,  what  temptation  is  held  out  to  waste  the  trust 
property,  and  destroy  all  the  hopes  and  interest  of  the  cestuy  que  trust? 
A  suit  in  chancery  is,  in  such  cases,  necessarily  tedious  and  expensive, 
and  years  may  elapse,  as  in  this  case,  before  the  suit  can  be  brought  to 
a  final  conclusion.  If  the  property  is  to  remain  all  this  time  subject  to 
his  disposition,  in  spite  of  the  efforts  of  the  court  to  prevent  it,  the  rights 
of  that  helpless  portion  of  the  community,  whose  property  is  most  fre- 
quently held  in  trust,  will  be  put  in  extreme  jeopardy.  To  bring  home  to 
every  purchaser  the  charge  of  actual  notice  of  the  suit,  must,  from  the 
very  nature  of  the  case,  be  in  a  great  degree  impracticable.  The  only 
safe  and  efficient  means  of  preventing  such  fraud  and  injustice,  is  to 
charge  the  purchaser  with  dealing  with  the  trustee  at  his  peril.  The 
policy  of  the  law  does,  in  general,  cast  that  peril  upon  the  purchaser. 
Caveat  emptor,  is  the  settled  maxim  of  the  common  law.  It  is  his  busi- 
ness to  inquire  and  to  look  to  the  person  with  whom  he  deals.  If  he 
knows  him  to  be  a  trustee,  then  let  him  inquire  of  the  cestuy  que  trust, 
or  let  him  ask  at  the  register's  office,  whether  there  be  any  suit  pending 
Against  such  trustee.  He  can  always  be  safe  if  he  uses  due  diligence; 
but  the  other  party  has  no  means  of  safety  beyond  his  application  to  the 
court.  Whatever  may  be  thought  of  the  rule,  it  appears  to  me  to  be 
less  severe  than  that  acknowledged  rule  of  the  common  law,  on  which 
our  courts  have  repeatedly  acted,  that  a  conveyance  of  land,  without  any 
warranty  or  covenant  of  title,  will  not  enable  the  purchaser  to  resort 
back  to  the  seller,  even  if  the  title  should  fail.  Frost  v.  Raymond,  2 
Caines'  Rep.  188;  and  if  he  has  covenants  to  secure  his  title,  he  can 
seek  for  no  more  than  the  consideration  which  he  has  paid,  without  any 
allowance  for  the  rise  in  value  of  the  land,  or  the  value  of  the  improve- 
ments.   Pitcher  r.  Livingston,  4  Johns.  Rep.  1. 

I  have  said  that  the  lis  pendens  was,  of  itself,  notice  to  the  purchaser, 
and  it  will  now  be  proper  to  show  that  this  rule  is  well  established  in 
eur  law.  It  is  no  more  than  an  adoption  of  the  rule  in  a  real  action  at 
common  law,  where,  if  the  defendant  aliens  after  the  pendency  of  the 
■writ,  the  judgment  in  the  real  action  will  overreach  such  alienation.  It 
was  one  of  the  ordinances  of  Lord  Bacon,  laid  down  for  the  better  and 
more  regular  administration  of  justice  in  the  court  of  chancery,  that 
*'no  decree  bindeth  any  that  cometh  in  bona  fide,  by  conveyance  from  the 
defendant,  before  the  bill  exhibited,  and  is  made  no  party,  neither  by  bill 
nor  order:  but  where  he  comes  in  pendente  lite,  and  while  the  suit  is  in 
full  prosecution,  and  without  any  colour  of  allowance  or  privity  of  the 
court,  there  regularly  the  decree  bindeth."  Lord  Bacon's  works,  vol.  4. 
511.  Here  we  fuid  the  rule  declared  above  two  centuries  ago,  and  by  the 
highest  authority  to  which  we  can  appeal ;  and  it  will  appear  to  have 
received,  support  and  application  down  to  this  day.  In  the  case  of  Mar- 
tin V.  Stikes  (cited  hj  Lord  Nottingham,  in  his  Prolegomena  of  Equity, 


524  MFERAY  &  WINTER  v.  BALLOU  &  HUNT       [part  i. 

and,  again,  in  11  Ves.  200),  the  bill  was  filed  in  1640,  and  was  abated, 
by  death,  in  1648;  and  a  bill  of  revivor  was  filed  in  1662,  and  the  pur- 
chase was  made  in  1651,  and  yet,  as  the  purchase  was,  by  relation 
of  the  bill  of  revivor,  made  pendente  lite,  the  purchaser  was  held 
bound,  and  by  no  less  a  character  than  Lord  Clarendon.  I  cite  this  case, 
not  with  approbation,  but  merely  to  show  the  great  extent  to  which  the 
rule  has  been  anciently  carried.  When  this  very  case  was,  afterwards, 
in  a  new  shape,  brought  before  Lord  Keeper  Bridojiian^  1  Cas.  in  Ch. 
150  he  observed,  that  it  was  not  form,  but  the  substance  of  a  decree, 
that  all  are  bound  by  it  who  come  in,  pendente  lite.  The  case  of  Cul- 
pepper V.  Austin,  which  was  a  few  years  subsequent,  2  Ch.  Cas.  115, 
221,  is  a  strong  determination  on  the  same  point:  in  that  case  the 
testator  had  conveyed  his  lands  to  his  executors,  in  fee,  to  pay  his  debts; 
and  after  his  death  the  defendant  purchased  the  lands  of  the  executors 
for  a  valuable  consideration.  The  heir  brought  his  bill,  to  have  the  land, 
on  the  ground  that  the  lands  were  not  wanted  to  pay  debts ;  and  the  Lord 
Chancellor  held,  that  the  suit  pending  between  the  heir  and  the  trustee, 
to  have  an  account,  was  sufficient  notice,  in  law,  without  actual  notice 
of  the  suit,  and  the  party  purchased  at  his  peril ;  so  that  if,  in  the  event 
of  the  suit,  it  appeared  that  the  sale  was  unnecessary  and  improper,  the 
heir  would  recover  against  the  purchaser.  It  turned  out,  afterwards, 
that  the  defendant  lost  his  purchase,  though  he  had  no  actual  notice  of 
the  suit,  and  though  he  had  purchased  and  paid  the  same  day  the  bill 
was  exhibited.  Vide,  as  to  this  result,  what  was  said  by  the  Chancellor 
in  Baens  v.  Canning,  1  Ch.  Cas.  301.  The  case  of  Fleming  v.  Page  and 
Blaker  arose  during  the  time  of  Lord  Nottingham,  Rep.  temp.  Finch, 
321.  These  were  purchases  made  by  the  defendants  for  a  valuable  con- 
sideration, but  they  were  made  pendente  lite,  and  for  that  reason  the 
purchasers  were  decreed  to  reconvey  and  deliver  up  the  writings.  The 
same  general  principal,  that  all  persons  who  come  in  as  purchasers, 
pendente  lite,  though  they  are  no  parties  to  the  suit,  they  and  their 
interests  shall  be  bound  and  avoided  by  the  decree,  is  laid  down  as  the 
known  law,  in  several  cases  to  be  found  in  Vernon,  and  to  which  it  will 
be  sufficient  only  to  refer.  Preston  v.  Tubbin,  1  Vern.  286;  Anon.  1 
Vern.  318;  Goldson  v.  Gardner,  cited  in  Self  v.  Madox,  1  Vern.  459; 
Finch  V.  Newnham,  2  Vern.  216. 

If  we  come  down  to  more  modern  times,  when  the  principles  of  equity 
may  be  supposed  to  have  been  more  highly  cultivated,  and  more  pre- 
cisely defined,  we  shall  find  the  rule  recognised  with  equal  force.  Thus, 
in  Sorrel  v.  Carpenter,  2  P.  Wms.  482,  the  defendant  purchased  an 
estate,  pendente  lite,  from  one  Ligo,  after  subpoena  served  on  Ligo,  and 
before  answer,  for  the  full  value,  and  without  any  notice  of  the  plaintiff's 
title,  or  actual  notice  of  the  suit.  This  was  the  strongest  case  that  could 
be  imagined,  and  under  circumstances  far  more  favourable  to  the  pur- 
chaser than  the  present ;  and  Lord  Chancellor  King  said,  that  it  was  a  very 
hard  case  to  set  such  a  purchase  aside,  yet  he  admitted  that  such  was 


CHAP,  v.]      MUKEAY  &  WINTER  v.  BALLOU  &  HUNT  525 

the  rule,  and  that  it  was  taken  from  analogy  to  alienations  pending  a  real 
action  at  law.  This  doctrine  came  frequently  under  the  review  of  Lord 
Hard  WICK  K,  and  he  always  held  that  a  purchaser,  pendente  lite,  was 
bound  by  the  decree  in  the  suit.  The  pendency  of  the  suit  was,  of  itself, 
notice;  and  he  observed,  that  the  rule  was  to  prevent  a  greater  mischief 
that  would  arise  by  people's  purchasing  a  right  under  litigation.  Garth 
V.  Ward,  2  Atk.  174;  Worsley  v.  Scarborough,  3  Atk.  392.  Lord  Camden, 
afterwards,  enforced  the  same  rule.  "I  hold  it,"  he  said,  "as  a  general 
rule,  that  an  alienation  pending  a  suit  is  void."  Walker  v.  Smalwood, 
Amb.  676.  I  shall  conclude  this  view  of  the  English  authorities  with 
noticing  the  observations  of  the  Master  of  the  Rolls  in  the  case  of  The 
Bishop  of  Winchester  v.  Paine,  11  Ves.  194.  "He  who  purchases  during 
the  pendency  of  the  suit,  is  bound,"  says  Sir  William  Grant^  "by  the 
decree  that  may  be  made  against  the  person  from  whom  he  derives  title. 
The  litigating  parties  are  exempted  from  the  necessity  of  taking  any 
notice  of  a  title  so  acquired.  As  to  them  it  is  as  if  no  such  title  existed. 
Otherwise,  suits  would  be  interminable,  or  which  would  be  the  same  in 
effect,  it  would  be  in  the  pleasure  of  one  party  at  what  period  the  suit 
should  be  determined.  The  rule  may  sometimes  operate  with  hard- 
ship, but  general  convenience  requires  it." 

It  would  be  impossible,  as  I  apprehend,  to  mention  any  rule  of  law 
which  has  been  established  upon  higher  authority,  or  with  a  more  uni- 
form sanction;  and  1  should  have  thought  it  necessary  to  apologize  for 
wasting  so  much  time  on  the  point,  if  I  had  not  found  the  rule,  ancient 
and  stable  as  it  is,  questioned  and  resisted  by  plausible  considerations  ad- 
dressed to  the  feelings.  I  may,  also,  be  permitted  to  add,  that  as  I  am 
without  the  aid  of  any  public  reports,  or  any  distinct  knowledge  of  the 
decisions  of  this  court  during  the  time  of  my  predecessors,  I  am  obliged, 
in  almost  every  case,  to  reassert,  expound,  and  vindicate  the  principles  of 
our  equity  jurisprudence.  Many  a  point  is  now  raised  which  would, 
probably,  never  have  been  disturbed,  if  the  means  had  been  afforded  to 
learn  the  doctrines  of  the  court;  and  it  cannot  be  too  often  repeated, 
and  too  deeply  impressed,  that  established  principles  in  equity  can  no 
more  be  dispensed  with  than  the  rules  of  law,  and  for  this  plain  reason, 
that  I  am  not  clothed  with  a  dispensing  i^ower. 

The  persons  in  whose  behalf  this  suit  was  instituted  are,  consequently, 
entitled  to  a  conveyance  of  the  land  sold  to  Ballou,  equally  as  if  the  title 
had  remained  in  Winter.  The  suit  is,  also,  against  Hunt,  the  assignee 
of  the  bond  and  mortgage  given  by  Ballou;  and  the  counsel  for  the 
plaintiffs  seek  either  the  land  or  the  proceeds  of  the  sale,  and  appear 
to  be  equally  willing  to  accept  of  either.  Hunt  purchased  the  bond  and 
mortgage,  as  he  says,  without  knowing  or  inquiring  as  to  the  consid- 
eration for  which  they  were  given ;  and  though  he  took  them  subject  to  all 
the  equitable  claims  of  Ballou,  yet,  as  between  him  and  the  plaintiffs, 
the  question  may  not  be  the  same ;  and  I  think  it  will  be  unnecessary  for 
me  to  decide,  at  present,  whether  the  doctrine  of  this  case  reaches  him. 


526         MURRAY  &  WINTER  v.  LYLBURN  and  others  [part  i. 

so  as  to  protect  from  assignment  all  the  bonds  and  other  securities  taken 
by  Winter  in  his  character  of  trustee. 

This  point  underwent  much  discussion  in  the  House  of  Lords,  in  Red- 
fearn  v.  Ferrier  and  others,  1  Dow's  Rep.  50;  and  it  was  there  held,  on 
appeal  in  a  Scotch  case,  that  a  latent  equity,  in  a  third  person,  shall  not 
defeat  a  bona  fide  assignee  of  a  right  without  notice,  except  it  be  an 
assignment  by  an  executor,  which  carried  on  the  face  of  it  notice  of  his 
fiduciary  character.     See  p.  54,  59,  60,  66,  72. 

The  claim  raised  by  the  bill  against  Ballou,  for  the  land,  and  against 
Hunt,  for  the  proceeds  of  the  sale,  are  inconsisteait  with  each  other;  for 
the  one  annuls,  and  the  other  affirms,  the  sale.  The  claim  to  the  land  is 
clear  of  all  difficulty,  and  comes  within  all  the  cases ;  and  the  only  use  I 
shall  make  of  the  demand  in  the  alternative,  for  the  lands  or  the  proceeds, 
will  be  to  relieve  Ballou  as  far  as  it  is  possible  from  the  loss  of  his  im- 
provements, by  giving  him  the  alternative,  to  convey  the  land,  or  keep 
the  land,  and  pay  the  amount  of  the  consideration  he  gave,  together 
with  the  interest  thereon. 


MURRAY  AND  WINTER  v.  LYLBURN  and  Others. 

In   the    Court    op    Chancery    of    New    York,    before    Chancellor 

Kent,  1817. 

[2  Johnson's  Chancery,  441.] 

The  Chancellor  [Kent].  The  question  is,  whether  the  executors  of 
Lylburn  are  to  be  held  accountable  to  the  cestui  que  trusts  (in  whose 
behalf  Murray,  as  receiver,  instituted  the  suit)  for  the  bond  and  mort- 
gage, in  like  manner  as  W^inter  may  be,  or  would  have  been,  had  he 
not  assigned  them. 

The  ease  states,  that  the  bill  has  been  taken  pro  confesso  against 
Sprague,  the  purchaser,  and  against  Davis,  who  holds  under  him.  It  also 
states,  that  Davis  is  in  possession. 

The  cestui  que  trusts  are  not  entitled  to  the  land,  and  also  to  the  pur- 
chase-money. The  two  claims,  as  I  observed  in  the  analogous  case  of 
Murray  v.  Ballou  and  Hunt,  1  Johns.  Ch.  Rep.  581,  are  inconsistent  with 
each  other.  The  one  sets  aside,  and  the  other  affirms  the  sale.  If  the 
cestui  que  trusts  choose  to  disregard  the  alienation  made  by  the  trustee, 
pending  the  suit  against  him  (as  they  may  do,  according  to  the  settled 
doctrines  of  the  Court),  then  they  have  nothing  to  do  with  these  se- 
curities, but  are  to  look  solely  to  the  land,  taking  no  notice  of  the 
alienation  by  Winter.  They  ought  to  be  put  to  their  election.  I  am  in- 
clined to  think  they  may,  if  they  please,  affirm  the  sale,  and  look  to  these 


CHAP,  v.]        MURKAY  &  WINTER  v.  LYLBURN  and  others        527 

securities;  and  if  they  do,  then  the  bill,  as  against  Sprague  and  Davis, 
ought  to  be  dismissed. 

It  is  a  general  and  well-settled  principle,  that  the  assignee  of  a  chozs 
in  action  takes  it  subject  to  the  same  equity  it  was  subject  to  in  the 
hands  of  the  assignor.    2  Vern.  691,  764;  1  P.  Wms.  496;  1  Ves.  123;  4 
Vesey,  jun.  21.    But  this  rule  is  generally  understood  to  mean  the  equity 
residing  in  the  original  obligor  or  debtor,  and  not  an   equity  residing 
in  some  third  person  against  the  assignor.    He  takes  it  subject  to  all  the 
equity  of  the  obligor,  say  the  judges  in  the  very  elaborately  argued  case 
of  Norton  V.  Rose,  2  Wash.  Rep.  233,  254,  on  this  very  point,  touching 
the  rights  of  the  assignee  of  a  bond.    The  assignee  can  always  go  to  the 
debtor,  and  ascertain  what  claims  he  may  have  against  the  bond,  or  other 
chose  in  action,  which  he  is  about  purchasing  from  the  obligee;  but  he 
may  not  be  able,  with  the  utmost  diligence,  to  ascertain  the  latent  equity 
of  some  third  person  against  the  obligee.    He  has  not  any  object  to  which 
he  can  direct  his  inquiries;  and,  for  this  reason,  the  claim  of  the  assignee, 
without  notice  of  a  chose  in  action,  was  preferred,  in  the  late  case  of 
Redfearn  v.  Ferrier  and  others,  1  Dow.  Rep.  50,  to  that  of  a  third  party 
setting  up  a  secret  equity  against  the  assignor.    Lord  Eldon  observed,  in 
that  case,  that  if  it  were  not  to  be  so,  no  assignments  could  ever  be  taken 
with  safety.     I  am  not  aware  that  this  decision  was  the  introduction  of 
any  new  principle,  in  the  case  of  actual  bona  fide  purchases  or  assign- 
ments by  contract;  though  Lord  Thurlow  said,  in  one  case,  1  Vesey,  jun. 
249,  that  the  purchaser  of  a  chose  in  action  must  abide  by  the  case  of  the 
person  from  whom  he  buys ;  but  he  spoke  this  on  a  question  between  the 
assignee  and  the  debtor.     In  assignments,  by  operation  of  laiv,  as  to  as- 
signees of  bankrupts,  the  case  may  be  different ;  for  such  assignments 
are  said  to  pass  the  rights  of  the  bankrupt,  subject  to  all  equities,  and 
precisely  in  the  same  plight  and  condition  as  he  possessed  them.    1  Atk. 
162;  9  Vesey,  100.     The  ground,  however,  on  which  I  place  the  right  of 
the  cestui  que  trusts,  in  this  case,  to  pursue  the  bond  and  mortgage  in 
the  hands  of  the  assignee  of  Winter,  is  the  constructive  notice  to  all  the 
world,  arising  from  the  bill  and  supplementary  bill,  filed  in  1809,  against 
Winter,  for  a  breach  of  trust.     The  object  of  that  suit  was  to  take  the 
whole  subject  of  the  trust  out  of  his  hands,  together  with  all  the  papers 
and  securities  relating  thereto.     If  Winter  had  held  a  number  of  mort- 
gages, and  other  securities,  in  trust,  when  the  suit  was  commenced,  it 
cannot  be  pretended,  that  he  might  safely  defeat  the  object  of  the  suit, 
and  elude  the  justice  of  the  Court,  by  selling  these   securities.     If  he 
possessed  cash,  as  the  proceeds  of  the  trust  estate,  or  negotiable  paper  not 
due,  or  perhaps  movable  personal  property,  such  as  horses,  cattle,  grain, 
&c.,  I  am  not  prepared  to  say  the  rule  is  to  be  carried  so  far  as  to  effect 
such  sales.     The  safety  of  commercial  dealing  would  require  a  limita- 
tion of  the  rule;  but  bonds  and  mortgages  are  not  the  subject  of  ordinary 
commerce;   and   they   formed   one   of  the  specific   subjects   of  the   suit 
against  Winter,  and  the  injunction  prohibited  the  sale  and  assignment 


628          MUERAY  &  WINTER  v.  LYLBURN  and  others  [part  i. 

of  them  as  well  as  of  the  lands  held  in  trust.  If  the  trustees,  pending  the 
suit,  changed  the  land  into  personal  security,  as  he  did  in  this  case,  I  see 
no  good  reason  why  the  cestui  que  trusts  should  not  be  at  liberty  to  affirm 
the  sale,  and  take  the  security;  and  whoever,  afterwards,  purchased  it, 
was  chargeable  with  notice  of  the  suit.  He  was  dealing  with  a  subject 
out  of  the  ordinary  course  of  traffic,  and  always  understood  to  be  subject 
to  certain  equities ;  and  there  can  be  very  little  ground  for  the  complaint 
of  hardship  in  the  application  to  such  a  case,  of  the  general  doctrine  of 
the  Court.  There  is  no  principle  better  established,  nor  one  founded  on. 
more  indispensable  necessity,  than  that  the  purchase  of  the  subject  mat- 
ter in  controversy,  pendente  lite,  does  not  vary  the  rights  of  the  parties  in 
that  suit,  who  are  not  to  receive  any  prejudice  from  the  alienation.  The 
latent  equity  here  might  easily  have  been  discovered  by  Lylburn,  when  he 
purchased,  by  applying  to  the  records  of  this  Court.  If  the  cestui  que 
trust  be  entitled,  as  between  him  and  his  trustee,  to  take  the  securities  or 
the  land,  at  his  election,  it  ought  not  to  be  in  the  power  of  the  trustee 
to  defeat  that  election,  by  selling  the  securities.  The  litigating  parties  are 
not  to  have  their  rights  affected  by  any  alienation  during  the  pendency 
of  the  suit. 

This  doctrine  was  fully  considered,  and  the  authorities  reviewed,  in  the 
case  of  Murray  v.  Ballou,  1  Johns.  Ch.  Rep.  566,  and  I  do  not  know  that 
it  is  in  my  power  to  add  anything  material  to  what  was  there  said.  That 
case  must  be  considered  as  the  established  law  in  this  Court.  If  it  were 
necessary  to  give  further  proof  of  the  uncontradicted  existence  and  uni- 
form support  of  the  rule,  I  might  refer  to  the  ancient  rule  at  law,  Jack- 
son V.  Ketchum,  8  Johns.  Rep.  479,  that  a  purchase  of  land,  pending  a 
suit  concerning  it,  was  champerty.  It  was  also  the  maxim  of  the 
common  law  that  pendente  lite  nihil  innoventur.  In  the  recent  case  of 
Mfttcalf  V.  Pulvertoft,  2  Ves.  &  Beame,  200,  the  English  Vice-Chancellor 
reviewed  the  cases,  and  vindicated  this  doctrine.  So,  in  the  case  of 
Gaskell  v.  Durdin,  2  Ball  &  Beatty,  167,  the  present  Lord  Chancellor 
of  Ireland  declared  the  rule  in  the  following  clear  and  emphatical 
language :  "  The  rule  of  this  Court  undoubtedly  is,  that  any  inter- 
est acquired  in  the  subject  matter  of  a  suit,  pending  the  suit,  is  so 
far  considered  as  a  nullity,  that  it  cannot  avail  against  the  plaintiff's 
title;  and  if  this  rule  were  not  attended  to,  there  would  be  no  end  to  any 
suit ;  the  justice  of  this  Court  would  be  evaded,  and  great  hardship  and 
inconvenience  to  the  suitor  necessarily  introduced.  It  is  extremely 
difficult  to  draw  any  line,  and  very  dangerous  to  allow  of  the  rule  being 
fritted  away  by  exceptions." 

I  shall,  accordingly,  decree,  that  the  plaintiffs,  by  their  solicitor, 
signify,  by  an  election  in  writing,  signed  by  such  solicitor,  and  tiled  in 
the  register's  office,  their  determination  whether  to  proceed  against  the 
defendants  Sprague  and  Davis  for  the  land,  or  against  the  defendants 
Lylburn  and  Isham  for  the  bond  and  mortgage  mentioned  in  the  plead- 
ings.   That  if  such  election  be  to  proceed  against  the  defendants  Sprague 


CHAP,  v.]  COUNTY  OF  WAKEEN  v.  MARCY  529 

and  Davis,  then  the  bill,  as  against  the  defendants  Lylburn  and  Isham 
shall,  from  the  time  of  filing  such  writing,  stand  dismissed  and  the 
defendants  S.  and  D.  shall,  within  thirty  days,  convey  the  lot  in  the 
pleadings  mentioned  to  the  present  trustees,  &c.,  and  pay  the  costs  of  the 
suit  against  them;  but  that  if  such  election  be  to  proceed  against  the 
defendants  Lylburn  and  Isham,  then  the  bill,  as  against  the  defcjidants 
Sprague  and  Davis,  shall,  from  the  time  of  filing  such  writing,  stand 
dismissed,  and  the  said  defendants  Lylburn  and  Isham  shall,  within 
thirty  days  from  the  service  of  a  copy  of  this  decree,  and  of  such  election, 
at  their  own  expense,  reassign  and  deliver  to  the  said  solicitor,  or  his 
order,  for  the  use  of  the  cestui  qve  tnisls,  for  whose  benefit  this  suit  was 
instituted,  the  said  bond  and  mortgage  together  with  all  the  right  and 
interest  of  their  testator,  at  the  time  of  his  death,  therein,  and  shall  also 
pay  the  sum  of  157  dollars  and  five  cents,  which  they  have  admitted,  by 
their  answer,  to  have  been  received  by  their  testator,  on  the  bond  and 
mortgage,  subsequent  to  the  assignment  thereof,  together  with  lawful 
interest  thereon,  from  the  30th  of  November,  1811,  when  it  was  re- 
ceived; and  that  if  the  plaintifts  shall  not  make  and  file  their  election, 
as  aforesaid,  within  forty  days  from  the  date  of  this  decree,  then  the  bill, 
as  to  all  the  defendants,  shall  be  dismissed. 

As  to  the  question  of  costs,  I  have  not  charged  the  executors  with  costs, 
because  there  is  no  evidence  that  their  testator  purchased  the  securities 
under  any  other  than  constructive  notice  of  the  suit  against  Winter;  and 
actual  notice  denied.  The  case,  therefore,  falls  within  the  decision  in 
Murray  v.  Ballou.  But  Sprague  and  Davis  are  made  chargeable,  in  one 
event,  with  costs,  because  they  are  charged  with  notice,  in  fact,  of  the 
suit  and  injunction,  and  thej^  have  admitted  it,  by  suffering  the  bill  to 
be  taken  pro  confesso.  And  in  the  cases  in  which  the  bill  is  to  be  dis- 
missed, there  having  existed  a  just  cause  of  suit,  which  is  lost  only  in 
consequence  of  an  election,  or  a  default  founded  upon  the  direction  in 
the  decree,  the  defendants,  even  then,  will  have  no  equity  to  entitle  them 
to  the  costs  of  the  suit,  and  the  dismissal  is  to  them  a  favor. 

Decree  accordingly. 


In  County  of  Warren  v.  Marcy  (1877)  97  TT.  S.  96, 105-106,  Mr.  Justice 
Bradley  said :  It  is  a  general  rule  that  all  persons  dealing  with  property 
are  bound  to  take  notice  of  a  suit  pending  with  regard  to  the  title  thereto, 
and  will,  on  their  peril,  purhase  the  same  from  any  of  the  parties  to  the 
suit.  But  this  rule  is  not  of  universal  application.  It  does  not  apply  to 
negotiable  securities  purchased  before  maturity,  nor  to  articles  of  or- 
dinary commerce  sold  in  the  usual  way.  This  exception  was  suggested  by 
Chancellor  Kent,  in  one  of  the  leading  cases  on  the  subject  in  this 
country,  and  has  been  xjonfirmed  by  many  subsequent  decisions. 


530  BEDFORD  v.  BACKHOUSE  [part  i. 

The  learned  Chancellor  gave  the  history  and  grounds  of  the  general 
doctrine  of  lis  pendens,  in  1815,  in  the  case  of  Murray  v.  Ballou,  1 
Johns.,  N.  Y.,  Ch.  566,  which  is  the  leading  American  case  on  the 
subject,  and  deserves  the  careful  study  of  every  student  of  law.  The 
fundamental  proposition  was  stated  in  these  words :  "  The  established 
rule  is,  that  a  lis  pendens,  duly  prosecuted,  and  not  conclusive,  is  notice 
to  a  purchaser  so  as  to  affect  and  bind  his  interest  by  the  decree ;  and  the 
lis  pendens  begins  from  the  service  of  the  subpoina  after  the  bill  is  filed." 
p.  576.  That  case  related  to  land,  with  regard  to  which  the  doctrine  is 
uniformly  applied. 

In  the  subsequent  case  of  Murray  v.  Lylburn,  2  id.  441,  decided  in 
1817,  the  same  doctrine  was  held  to  apply  to  choses  in  action  (in  that 
case,  a  bond  and  mortgage)  assigned  by  one  of  the  parties  pendente  lite. 
But  the  Chancellor,  with  wise  prevision,  indicated  the  qualification  to 
which  the  rule  should  be  subject  in  such  cases.  Speaking  of  the  trustee, 
whose  acts  were  in  question,  he  said :  "  If  Winter  had  held  a  number 
of  mortgages,  and  other  securities,  in  trust,  when  the  suit  was  com- 
menced, it  cannot  be  pretended  that  he  might  safely  defeat  the  object 
of  the  suit,  and  elude  the  justice  of  the  court,  by  selling  these  securities. 
If  he  possessed  cash,  as  the  proceeds  of  the  trust  estate,  or  negotiable 
paper  not  due,  or  perhaps  movable  personal  property,  such  as  horses, 
cattle,  grain,  etc.,  I  am  not  prepared  to  say  the  rule  is  to  be  carried  so 
far  as  to  affect  such  sales.  The  safety  of  commercial  dealing  would 
require  a  limitation  of  the  rule;  but  bonds  and  mortgages  are  not  the 
subject  of  ordinary  commerce;  and  they  formed  one  of  the  specific  sub- 
jects of  the  suit  against  Winter,  and  the  injunction  prohibited  the  sale 
and  assignment  of  them,  as  well  as  of  the  lands  held  in  trust." 

Here  we  have  the  whole  law  on  the  subject.  Subsequent  cases  have  only 
carried  it  out  and  applied  it.^ 


BEDFOED  V.  BACKHOUSE. 
In  Chancery  before  Lord  Chancellor  King,  1730. 

[2   Equiti/    Cases   Ahridged   615,   pi.    12.] 

A.  lent  money  on  a  Mortgage  of  Lands  in  Middlesex,  and  the 
Mortgage  was  duly  registered.  Afterwards  B.  lent  Money  on  the  same 
Security,  and  his  Mortgage  was  registered.  Then  A.  advanced  a  further 
Sum  upon  the  same  Lands,  without  Notice  of  the  Second  Mortgage.  And 
it  was  held  by  Lord  Chancellor  KiNc;  that  the  Registry  of  the  second 
Mortgage  was  not  constructive  Notice  to  the  first  Mortgagee  before  his 

'And  sec  the  a(lniirn>)lo  eases  of  Newman  v.  Chapman,  1823,  2  Randolph, 
9.3.  and  Turner  v.  Iloupt.  1895,  53  N.  J.  Eq.  526,  in  which  tlie  doctrine  is 
develof)('d  and  discussed  on  principle. 


CHAP,  v.]  FROST  V.  BEEKMAN  531 

Advancement  of  the  latter  Sum,  for  tho'  the  Statute  avoids  Deeds  not 
rec:istered  as  against  Purchasers,  yet  it  gives  no  greater  Efficacy  to  Deeds 
that  are  registered  than  they  had  before;  and  the  constant  Rule  of 
Equity  is,  that  if  a  first  Mortgagee  lends  a  further  Sum  of  Money  wWvout 
Notice  of  a  second  Mortgage,  his  whole  Money  shall  be  paid  in  the  first 
place. 


FROST  V.  BEEKMAN. 


In    the    Court    of    Chancery    of    New    York,    before    Chancellor 

Kent,  ISl-i. 

[1  Johnson's  Chancery  288.] 

The  Chancellor  [Kent].' — Another  and  a  more  interesting  question, 
is  respecting  the  extent  and  effect  of  the  registry  of  the  defendant's 
mortgage,  as  notice  to  purchasers.  It  was  a  mortgage  for  3,000  dollars, 
and,  by  mistake,  the  registry  was  only  for  300  dollars.  This  mistake 
is  the  whole  cause  of  the  controversy. 

The  mortgage  act  of  the  sess.  24  eh.  156,  declared,  among  other  things, 
that  the  registry  of  a  mortgage  should  contain,  not,  indeed,  the  mortgage 
at  large,  but  the  essential  parts  of  the  mortgage,  and  among  other 
specified  parts,  "  the  mortgage  money,  and  the  time,  or  times,  when 
payable."  To  this  register  all  persons  whomsoever,  at  proper  seasons, 
are  at  liberty  to  have  recourse ;  and  the  act  declared  that  mortgages  were 
to  have  preference,  as  to  each  other,  according  to  the  times  of  registry, 
and  that  "  no  mortgage  should  defeat  or  prejudice  the  title  of  any  bona 
fide  purchaser,  unless  the  same  should  have  been  duly  registered,  as 
aforesaid."  This  registry  is  notice  of  the  mortgage  to  all  subsequent 
purchasers  and  mortgagees;  and  so  the  act  was  construed,  and  the  law 
declared,  by  the  court  of  errors,  in  the  case  of  Johnson  v.  Stagg,  2  Johns. 
Rep.  510.  The  English  authorities  on  this  point  do  not,  therefore, 
govern  the  case.  The  language  of  those  authorities,  undoubtedly,  is, 
that  the  registry  is  not  notice,  though  that  doctrine  is  much  questioned, 
and  the  point  seems  still  to  be  floating  and  unsettled.  Bedford  v.  Back- 
house, 3  Eq.  Cas.  Abr.  615,  pi.  12;  Wrightson  v.  Hudson,  lb.  609,  p. 
7;  Morecock  v.  Dickins,  Amb.  678;  Latouche  v.  Dunsany,  1  Schoale  & 
Lefroy,  157.  Sugden,  3d.  Lond.  ed.,  524—7.  Com.  Dig.  tit.  32  Deed, 
ch.  21.  s.  11.  The  only  question  with  us  is,  when,  and  to  what  extent, 
is  the  registry  notice?  Is  it  notice  of  a  mortgage  unduly  registered? 
or  is  it  notice  beyond  the  contents  of  the  registry? 

The  true  construction  of  the  act  appeiars  to  be,  that  the  registry  is 

'  A  part  of  the  opinion  of  the  learned  Chancellor  dealing  with  the  question 
of  delivery  and  its  essentials  is  omitted. 

Same  case  on  appeal,  18  Johns.  544   (reversed.) 


532  FEOST  v.  BEEKMAN  [part  i. 

notice  of  the  contents  of  it,  and  no  more,  and  that  the  purchaser  is  not 
to  be  charged  with  notice  of  the  contents  of  the  mortgage,  any  further 
than  tliey  may  be  contained  in  the  registry.  The  purchaser  is  not  bound 
to  attend  to  the  correctness  of  the  registry.  It  is  the  business  of  the 
mortgagee,  and  if  a  mistake  occurs  to  his  prejudice,  the  consequences  of 
it  lie  between  him  and  the  clerk,  and  not  between  him  and  the  hona  fide 
purchaser.  The  act,  in  providing  that  all  persons  might  have  recourse  to 
the  registry,  intended  that  as  the  correct  and  sufficient  source  of  informa- 
tion ;  and  it  would  be  a  doctrine  productive  of  immense  mischief  to  oblige 
the  purchaser  to  look,  at  his  peril,  to  the  contents  of  every  mortgage, 
and  to  be  bound  by  them,  when  different  from  the  contents  as  declared 
in  the  registry.  The  registry  might  prove  only  a  snare  to  the  purchaser, 
and  no  person  could  be  safe  in  his  purchase,  without  hunting  out  and 
inspecting  the  original  mortgage,  a  task  of  great  toil  and  difficulty.  I 
am  satisfied  that  this  was  not  the  intention,  as  it  certainly  is  not  the 
sound  policy,  of  the  statute;  nor  is  it  repugnant  to  the  doctrine  contained 
in  the  books,  that  notice  to  a  purchaser,  of  the  existence  of  a  lease,  is 
notice  of  its  contents.  Taylor  v.  Stibbert,  2  Ves.  juri.  437;  Hiern  v.  Mill, 
13  Ves.  jun.  118,  120;  Hall  v.  Smith,  14  Ves.  jun.  426.  In  that  case,  the 
party  is  put  upon  inquiry,  and  he  must  make  it,  or  abide  the  conse- 
quences. The  decision,  in  Jackson  v.  Neely,  10  Johns.  Hep.  374,  was 
made  upon  the  same  principle;  and  it  was  held  that  the  recital  in  a  deed 
of  a  letter  of  attorney,  by  which  it  was  made,  was  notice  to  the  purchaser 
of  the  existence  of  such  a  power.  But  here  the  statute  did  not  mean  to 
put  the  party  upon  further  inquiry.  The  registry  was  intended  to  con- 
tain, within  itself,  all  the  knowledge  of  the  mortgage  requisite  for  the 
purchaser's  safety. 

The  question  does  not  necessarily  arise,  in  this  case,  how  far  the  un- 
authorized registry  of  a  mortgage,  as  one  made,  for  instance,  without 
any  previous  legal  proof,  or  acknowledgment,  would  charge  a  purchaser 
with  notice  of  the  mortgage.  The  better  opinion,  in  the  books,  seems  to 
be,  that  it  would  not  be  notice,  and  that  equity  will  not  interfere  in 
favour  of  an  encumbrancer,  when  he  has  not  seen  that  his  mortgage  was 
duly  registered.  Sugden's  Law  of  Vend.  527;  1  Schoale  «fe  Lefroy,  157; 
Iliester  v.  Fortner,  2  Binney,  40.  But  here  everything  was  done  that 
could  have  been  previously  required  of  the  mortgagee.  The  mortgage 
was  duly  presented  for  registry,  and  he  was  not  bound  to  inspect  and 
correct  the  record.  This  was  the  exclusive  business  and  duty  of  the 
clerk,  and  there  is  no  reason  why  the  registry  should  not  operate  as  notice, 
to  the  amount  of  the  sum  mentioned  therein;  and,  indeed,  so  far  the 
obligation  of  the  registry  is  admitted  by  the  bill. 

I  conclude,  therefore,  that'  the  registry  was  notice  to  purchasers, 
to  the  amount,  and  only  to  the  amount,  of  the  sum  specified  in  the 
registry. 

We  arc  next  Iccl  to  consider  how  far  relief  can  be  granted  to  the 
defendant  consistently  with  these  principles. 


CHAP,  v.]  FROST  V.  BEEKMAN  533 

Whatever  claims  the  defendant  may  have  to  favour,  arising  from  the 
misfortune  attending  his  case,  yet  it  is  an  established  rule,  in  equity,  to 
give  no  assistance  against  a  purchaser  for  a  valuable  consideration,  with- 
out notice.  Wallwyn  v.  Lee,  9  Ves.  24.  He  has  equal  claims  upon  the 
equity  of  the  court.  But,  whenever  actual  notice  of  the  true  sum  in  the 
mortgage  can  be  brought  home  to  the  purchaser,  he  is  from  that  time, 
so  far  as  the  former  purchase  is  left  incomplete,  either  as  to  the  deed  on 
the  one  hand,  or  as  to  payments  on  the  other,  bound  by  the  prior  equitable 
lien,  and  all  subsequent  payments,  by  him,  are  made  in  his  own  wrong, 
so  far  as  the  rights  of  the  mortgagee  are  concerned.  As  soon  as  notice 
is  received,  it  arrests  all  further  proceedings  towards  the  completion 
of  the  purchase  and  payment,  and,  if  persisted  in,  they  are  held  to  be 
done  in  fraud  of  the  equitable  encumbrance.  Wigg  v.  Wigg,  1  Atk.  384 ; 
Story  V.  Lord  Windsor,  2  Atk.  630.  Thus,  in  Tourville  v.  Naish,  3  P. 
Wms.  306,  it  was  held,  that  where  a  man  purchases  an  estate,  and  pays 
part,  and  gives  a  bond  for  the  residue,  notice  of  an  equitable  encum- 
brance, before  payment,  thovigh  after  the  giving  of  the  bond,  was  suffi- 
cient to  stop  payment,  and  to  entitle  the  obligor  to  relief,  in  equity, 
against  the  bond.  Again,  in  Hardingham  v.  Nicholls,  3  Atk.  304,  it  was 
ruled  to  the  same  effect,  that,  if  the  purchaser  for  a  valuable  consideration 
had  not  paid  the  money  when  notice  of  the  lien  was  received,  though 
it  was  secured  to  be  paid,  the  plea  of  such  a  purchase  was  not  good 
against  the  plaintiff's  title.  There  can  be  no  doubt  as  to  the  rule  of 
equity  in  this  case,  and  the  only  difficulty  is,  to  determine  from  what 
time  the  plaintiffs  are  to  be  charged  with  notice  of  the  mistake  in  the 
registry  of  the  mortgage. 

Frost  and  M.  Goddard  are  to  be  treated  as  bona  fide  purchasers,  without 
notice.  It  is  so  averred  in  the  bill,  and  there  is  no  proof  to  contradict 
it.  The  last  deeds  from  Corl  to  them,  though  bearing  date  in  September, 
1805,  were  acknowledged  in  September,  1806,  and  are  proved  by  the 
witnesses  on  the  part  of  the  plaintiffs,  (Healy  and  Taylor),  to  have 
been  executed  in  September,  1806.  At  that  time,  as  Frost  avers,  they 
had  no  notice,  in  fact,  of  the  registry,  though  they  were  chargeable  with 
notice,  in  law;  and  when  the  notice,  in  fact,  not  only  of  the  registry, 
but  of  the  mistake  in  the  registry,  came  to  their  knowledge,  is  left  to 
be  inferred  from  circumstances.  They  have  not  thought  proper  to  dis- 
close the  precise  time,  and  the  obscurity  in  which  this  fact  is  left  by  the 
plaintiffs,  authorizes  the  presumption  that  they  may  have  known  it 
sooner  than  they  are  willing  to  declare.  The  bill  does  not  state  at  what 
time  the  discovery  was  made  of  the  registry,  but  only  that,  "  on  such 
discovery,"  Frost  applied  to  the  defendant,  to  pay  him  the  300  dollars, 
and  was  then  first  informed  of  the  mistake.  One  of  the  witnesses  (Whit- 
ney), would  lead  us  to  conclude  that  the  first  actual  knowledge  which 
the  parties  had  of  the  registry  was  in  September,  1807;  and  it  was 
in  September  and  November,  1807,  as  appears  by  the  acknowledgments 
upon  the  deeds,  that  Frost  and  Martin  Goddard  sold  to  the  other  plain- 


534  FROST  v.  BEEKMAN  [part  i. 

tiffs.  I  think  that  actual  notice  of  the  true  mortgage  ought  to  be  fixed  on 
Frost  and  Martin  Goddard,  as  early,  at  least,  as  September,  1807.  The 
purchasers  from  them,  who  are  the  other  plaintiffs  in  the  bill,  make  no 
averment  of  being  bona  fide  purchasers,  without  notice  of  the  true 
mortgage.  They  are  perfectly  silent  on  the  fact  of  notice,  and  the 
bill  is  rather  equivocal  on  this  point,  even  as  to  Frost.  He  only  says, 
that  he  and  Martin  Goddard  alienated  "  without  any  knowledge  or  suspi- 
cion of  any  encumbrance,  except  the  mortgage  registered  as  aforesaid." 
In  all  cases  in  which  a  party  sets  up  his  title  to  relief  in  equity,  as  a 
bona  fide  purchaser,  he  must  deny  notice,  though  it  be  not  charged. 
3  P.  Wms.  244.  n.,  Bodman  v.  Bon  Den  Bendy,  1  Vern.  179.  It  is  a 
general  rule  in  pleading,  that  whatever  is  essential  to  the  right  of  the 
party,  and  is  necessarily  within  his  knowledge,  must  be  positively  and 
precisely  alleged;  and  the  plaintiffs  coming  in  the  character  of  bona  fide 
purchasers,  were  bound  to  state,  affirmatively,  the  equity  of  their  case ;  if 
they  will  not  aver  the  fact,  that  they  were  purchasers  without  notice, 
we  are  not  bound  to  presimie  it.  The  fact  rests  in  their  own  knowledge. 
In  Gerard  v.  Saunders,  2  Ves.  jun.  454,  the  defendant  pleaded  a  purchase 
for  a  valuable  consideration,  without  notice ;  and  Lord  Loughborough 
held,  that  he  was  bound  to  deny,  fully,  and  in  the  most  precise  terms, 
every  circumstance  from  whence  notice  could  be  inferred. 

One  of  the  deeds  to  Frost,  for  200  acres,  was  dated  in  1803,  and 
recorded  in  1805,  prior  to  the  mortgage;  and  whatever  payments  were 
made  upon  that  purchase  before  Frost  was  chargeable  with  notice  of 
the  true  mortgage,  though  made  prior  to  the  time  of  the  delivery  of  the 
defendant's  deed  to  Corl,  ought  equally,  with  subsequent  payments,  to 
be  protected  against  any  further  sum  than  that  contained  in  the  registry 
of  the  mortgage.  Frost  cannot  be  in  a  worse  situation  by  paying  money 
before  Corl's  title  was  perfected,  than  if  he  had  paid  it  immediately  after. 
As  a  bona  fide  purchaser  without  notice,  and  so  long  as  that  character 
is  preserved,  he  is  not  bound  beyond  the  sum  in  the  registered  mortgage ; 
and  though  no  prior  transaction  between  Corl  and  him  could  gain  a 
preference  over  the  mortgage  as  registered,  because  Corl  had  no  title 
until  the  delivery  of  the  deed  to  him,  in  consequence  of  that  registry,  yet, 
when  the  delivery  took  place,  the  prior  deed  to  Frost,  and  the  prior  record 
of  it,  operated,  instantly,  so  as  to  protect  Frost's  title  from  that  time, 
and  to  render  him  a  bo?ia  fide  purchaser,  except  as  to  the  registered 
mortgage.  It  follows,  of  course,  that  all  prior  payments  made  by  him 
became  equally  effectual,  subject  to  the  same  limitation.  A  contrary 
rule  would  work  odious  injustice. 

The  subject  of  the  payments  requires  this  further  explanation:  and 
payments  to  the  endorsee  or  assignee  of  Corl,  before  notice,  are  the  same 
as  payments  to  him ;  and  if  any  part  of  the  debt  created  by  the  purchasers, 
or  either  of  them,  has  been  duly  transferred,  so  as  to  vest  the  interest  in 
the  assignee;  and  if  either  Frost  or  Goddard,  before  notice,  had  changed 
the  debt  in  the  hands  of  the  assignee,  by  giving  new  notes  or  obliga- 


CHAP,  v.]  BLADES  v.  BLADES  535 

tions  to  the  bona  fide  holder,  he  ought  to  be  allowed  for  this  as  payment, 
because  he  has  extinguished  so  much  of  the  old  debt,  and  become  abso- 
lutely bound  to  the  new  creditor.' 


BLADES  V.  BLADES. 

In  Chancery,  before  Lord  Chancellor  King,  1727. 

[1  Equity  Cases  Abridged  358,  pi.  12.] 

So  in  a  Case  between  two  Purchasers  of  Lands  in  Yorkshire,  where  the 
second  Purchaser  having  Notice  of  the  first  Purchase,  but  that  it  was  not 
registered,  went  on  and  Purchased  the  same  Estate  and  got  his  Purchase 
registered;  yet  it  was  decreed,  that  having  Notice  of  the  first  Purchase, 
though  it  was  not  registered,  bound  him,  and  that  his  getting  his  own 
Purchase  first  registered  was  a  Fraud,  the  Design  of  those  Acts  being 
only  to  give  Parties  Notice,  who  might  otherwise,  without  such  Registry, 
be  in  Danger  of  being  imposed  on  by  a  prior  Purchase  or  Mortgage, 
which  they  are  in  no  Danger  of  when  they  have  Notice  thereof  in  any 
Manner,  tho'  not  by  the  Register.^ 

*"The  principal  question  in  this  case  is  whether  the  deed  of  Stephen  Dow, 
conveyed  to  the  grantee  a  title  which  is  superior  to  that  of  any  grantee  by  a 
prior  unrecorded  deed  of  the  grantor.  This  question  was  fully  considered 
and  discussed  in  Woodward  v.  Sartwell,  129  Mass.  210.  In  that  case  it  was 
held  that  a  deed  by  an  officer,  upon  a  sale  or  execution  of  'all  the  right,  title, 
and  interest,  of  the  judgment  debtor  in  land  specifically  described  in  the  deed, 
took  precedence  of  a  prior  vmrecorded  deed  of  the  judgment  debtor,  and  con- 
veyed to  the  purchaser  a  good  title.  The  court  put  the  decision  upon  the 
ground  that  an  attaching  creditor  has  the  same  standing  as  a  bona  fide 
purchaser,  and  that  the  deed  of  the  officer  'is  equivalent  to  a  conveyance  made 
by  the  debtor  at  the  time  the  attachment  was  made;  and  in  the  case  at  bar, 
as  the  record  title  then  stood  in  the  name  of  the  debtor,  as  to  bona  fide  pur- 
chasers, he  was  the  owner  of  the  land.' 

"We  are  satisfied  that  these  views  are  correct.  We  can  see  no  sound  dis- 
tinction between  a  deed  made  by  an  officer  upon  a  sale  on  execution,  and  a 
deed  made  by  the  debtor  himself.  In  either  case  the  deed  conveys  all  the 
title  which  the  debtor  had.  and  no  more:  but  a  prior  unrecorded  deed  has  no 
effect  except  as  to  the  parties  to  it,  and  others  having  notice  of  it,  and  as  to 
creditors  and  purchasers  loaves  the  title  in  the  grantor.  Earle  v.  Fiske,  103 
Mass.  491."     Per  Morton,  C.J.,  in  Dow  r.  Whitney,  1888,  147  Mass.  1,  G. 

-In  a  valuable  case  at  law,  Lord  IMansfield  said:  "But  in  respect  of 
voluntary  family  settlements,  to  be  sure,  notice  varies  miich.  In  the  case  of 
a  later  statute.  7  Ann.  C.  20,  though  it  is  said  there  positively,  'that  a  reg- 
istered deed  shall  take  place  of  an  unregistered  deed'  from  whence  it  might 


536  LE  NEVE  v.  LE  NEVE  [part  i. 

LE  NEVE  V.  LE  NEVE. 
In  Chancery  before  Lord  Chancellor  Hardvvicke,  1747.' 

[1  Vesey,  8r.  64.] 

Edward  Le  Neve  in  1718  married  his  first  wife,  who  then  had  a 
considerable  fortune ;  a  freehold  and  personal  estate,  with  more  personal 
estate  in  expectancy.  His  father  had  a  leasehold  estate  which  by  articles 
were  covenanted  in  consideration  for  the  marriage,  and  her  personal 
estate,  to  be  settled  on  trustees  and  their  heirs  for  Edward  Le  Neve 
for  life,  then  for  his  intended  wife  for  life,  for  a  jointure  if  she  sur- 
vived him:  after  their  death,  in  trust  for  the  issue  of  the  body  of 
Edward  by  her  in  such  manner  as  he  by  deed  in  life,  or  by  his  will 
should  appoint :  in  default  of  such  issue,  to  Edward  and  his  heirs. 

The  marriage  was  had,  and  a  settlement  made  in  pursuance  of 
the  articles;  there  was  issue;   the  wife  died:  the  only  children   now 

be  argued,  that  if  a  person  knew  of  an  unre.gi.stered  deed,  it  should  stand 
against  him :  Equity  says,  if  the  party  knew  of  the  unregistered  deed,  his 
registered  deed  shall  not  set  it  aside:  because  lie  has  that  notice  which  the 
act  of  Parliament  intended  he  should  ha\e. 

"I  now  come  to  the  consideration  of  the  third  question,  'whether  the  deed 
of  1773  is  such  a  deed  as  is  entitled  to  protection,  and  ought  to  set  the  other 
aside?' 

"In  order  to  do  that  it  should  be  a  ho7W  fide  transaction,  and  a  fair  pur- 
chase, in  the  understanding  of  mankind;  or  for  a  good  consideration,  as  a 
settlement  upon  a  marriage,  in  consideration  of  the  marriage;  and  then, 
such  a  settlement  would  set  aside  and  take  place  of  a  former  fraudulent 
deed.  It  is  not  necessary  that  it  should  be  for  money:  but  it  must  be  a  fair 
bona  fide  transaction:  if  it  is  colorable  only  it  cannot  stand."  Doe  i\  Rut- 
ledge,  1777,  Cowp.  705,  712. 

And  so  in  Stroud  v.  Lockhart,  1797,  4  Dall.  L5.'],  where  it  appeared  that 
the  defendant,  Lockhart,  knew  of  the  existence  of  the  mortgage  at  the  time 
of  purchase,  and  said  he  would  pay  it,  although  then  unrecorded.  The  Court 
in  a  per  curiam  decision  held : 

"The  case  is  too  plain  for  argument.  The  plaintifT  must  have  a  verdict; 
and  all  the  trouble  of  the   jury  will  bo  to  calculate  the  interest." 

Finally,  in  Agra  Tiank.  Lid.  r.  Harry.  1874,  7  H.  L.  13,5.  148,  Loid  Chan- 
cellor Caikns   said  : 

".And,  my  TiOrds,  I  take  the  explanation  of  those  decisions  to  be  that,  which 
was  given  by  Lord  Ktn(!  in  the  case  of  Blades  v.  Blades.  1  Eq.  C.  .\b.  pi.  12, 
p.  liryfi.  npwaid  of  150  years  ago,  the  case  which  was  mentioned  just  now  at 
your  Lord^hip'^'  Bar." 

'  "I. Old  ll.\i:iiwifKK,  ihe  s\iccessor  of  Lord  TAT.nnT,  held  the  greal  seal  for 
upwards  of  twenty  years,  and  the  present  wise  and  rational  system  of  English 
wpiity  jurispriulencp  owes  more  to  him  than  perhaps  to  any  of  his  predecessors, 
iris  decisions  are  reported  in  Ihe  elder  Vesey  and  Atkyns,  and  partly  in 
Ambler  and  Dickens:   and  though  none  of  them  are  eminent  reporters,  either 


(■iiAP.  v.]  LE  NEVE  V.  LE  NEVE  537 

living  were  the  present  plaintiffs,  a  son  and  a  daughter.  In  1743 
Edward  Le  Neve  married  a  second  wife;  but  previously  entered  into 
articles  with  her  trustees,  for  settling  this  very  estate  on  himself  for 
life,  then  on  her  for  her  jointure,  and  on  the  issue  of  that  marriage; 
pursuant  to  which  a  settlement  was  made. 

This  estate  was  subject  to  the  Stat.  7  Queen  Anne,  cap.  20.  which 
requires  registry.  The  first  marriage  articles  and  settlement  were  never 
registered;  the  second  were.  Edward  Le  Neve  also  mortgaged  this 
leasehold  estate,  as  absolute  owner. 

for  acciuacy  or  precision  in  the  statements  of  the  cases,  or  in  giving  the 
judgment  of  the  court,  yet  the  vahie  of  his  oi)inions,  and  the  great  extent 
(if  his  learning,  and  the  solidity  of  his  judgment,  have  been  suflieiently  per- 
ceived and  understood.  There  is  no  judge  in  the  judicial  annals  of  England 
whose  judicial  character  has  received  greater  and  more  constant  homage.  His 
knowledge  of  the  law,  said  a  very  competent  judge,  was  most  extraordinary, 
and  he  was  a  consummate  master  of  the  profession.  His  decisions,  at  this  day, 
and  in  our  own  courts,  do  undoubtedly  carry  with  them  a  more  commanding 
weight  of  authority  than  those  of  any  otlier  judge;  and  the  best  editions  of 
the  elder  Vesey  and  Atkyns  will  continue  to  fix  the  attention  and  study  of 
succeeding  ages."     1  Kent's  Commentaries,  494. 

"Among  English  lawyers  his  position  is  unique.  With  less  than  the  ordi- 
nary advantages  of  education,  he  proved  more  than  competent  in  youth  for 
offices  which  usually  tax  the  powers  of  mature  age.  His  maturity  fulfilled  the 
promise  of  his  prime,  and  his  later  career  crowned  the  whole  with  unperishable 
lustre.  The  term  of  his  chief -justiceship  was,  indeed,  too  brief  and  uneventful 
to  afford  him  an  occasion  of  displaying  his  qualities  to  full  advantage,  but 
during  his  prolonged  tenure  of  the  great  seal  they  found  such  scope  as  had  been 
allowed  to  none  of  his  predecessors ;  nor  did  he  fail  to  turn  his  opportunity  to 
noble  account.  It  is  hardly  too  much  to  say  that  in  the  course  of  somewhat 
less  than  twenty  years  he  transformed  equity  from  a  chaos  of  precedents  into 
a  scientific  system.  This  grand  revolution  he  effected  in  the  quiet,  unob- 
trusive, almost  imperceptible  manner  in  which  the  most  dvnable  results  are 
usually  achieved.  Far  from  despising  precedent,  he  diligently  sought  for  and 
followed  it  whenever  practicable.  But  the  use  which  he  made  of  it  was  such 
as  the  Baconian  philosopher  makes  of  the  instances  positive  and  negative  upon 
which  he  founds  a  generalization.  Each  case  as  it  came  before  him  he  reviewed 
in  the  light  of  all  discoverable  relevant  authorities,  and  never  rested  vmtil  he 
had  elicited  from  them  an  intelligible  ground  of  decision.  Where  English 
precedents  failed  he  drew  freely  upon  the  learning  of  the  civilians,  and,  in  the 
last  resort,  upon  his  own  large  and  luminous  sense  of  natural  justice.  Thus  in 
Hardwicke  the  rational  and  architectonic  spiiit  of  the  Roman  jiuisprudence 
penetrated  English  equity,  with  the  result  that  in  a  multitude  of  intricate 
questions  his  decisions  have  traced  the  lines  within  which  his  successors  have 
undeviatingly  proceeded ;  and  close  and  frequent  scrutiny  has  only  served  to 
confirm  their  authority.  His  judgments,  which  in  important  cases  were 
usually  written,  were  always  models  of  logical  arrangement  and  perspicuous 
style.  Only  three  of  them  were  ever  reviewed  by  the  House  of  Lords,  and  in 
each  case  the  decision  was  affirmed."  Article  on  Yorke,  Philip,  first  Earl  of 
Hardwicke,  in  Diet.  Nat'l  Biography. 


538  LE  NEVE  v.  LE  NEVE  [part  i. 

The  bill  (vide  ante,  61).  Such  notice  must,  however,  be  in  the  same 
transactions.  Eitzgib.  207,  2  Atk.  242 ;  3  Atk.  294,  392 ;  Barn.  Ch.  220,  was 
brought  by  the  children  of  the  first  marriage,  to  have  an  execution  of  the 
trust  of  the  leasehold  estate  settled  thereby ;  and  in  order  thereto  to  have 
the  subsequent  articles  and  settlement  postponed,  though  registered :  on 
the  foundation  of  notice  to  the  second  wife,  or  her  agent  or  trustee,  of  the 
first  articles  previous  to  her  marriage,  and  the  execution  of  the  second 
articles;  and  to  have  the  leasehold  estate  disincumbered  of  the  mortgages 
made  in  prejudice  of  the  trust :  and  that  the  plaintiffs  may  be  let  in 
according  to  the  contingency. 

Lord  Chancellor,  having  taken  time  to  consider  of  the  case,  now 
pronounced  his  decree.  The  first  settlement  of  this  leasehold  estate  is 
an  odd  one,  for  it  is  settled  as  a  freehold  estate :  however  that  will  not 
affect  the  question,  as  it  will  vest  in  a  proper  manner.  The  plaintiffs 
admit  the  law  to  be  against  them  from  the  defendant's  registering; 
because  the  act  gives  the  legal  estate  where  the  register  has  placed  it,  so 
that  the  general  question  is,  whether  there  is  sufficient  equity  for  the 
plaintiffs  to  get  the  better  of  the  legal  estate  vested  in  the  defendant's 
trustee,  who  is  a  purchaser  for  valuable  consideration?  which  will 
depend  on  the  point  of  notice,  and  the  consequences  of  it.  To  determine 
this,  several  questions  have  been  considered :  first,  whether  it  sufficiently 
appears,  that  one  Norton  was  agent  or  attorney  for  the  second  wife? 
Secondly,  whether  there  is  sufficient  evidence  of  notice  to  him  of  the 
first  articles;  such  as  will  be  admitted  according  to  the  rules  of  this 
court  ?  Thirdly,  supposing  there  is  sufficient  evidence,  whether  in 
equity  it  will  affect  the  defendant's  purchase,  and  oblige  the  court  to 
postpone  the  second  articles  and  settlement  to  the  first ;  notwithstanding 
the  registry  act.     7  Ann.  c.  20. 

The  first  question  will  depend  upon  the  answer  of  the  defendant  the 
second  wife;  who  in  general  has  denied  notice  of  the  first  articles  and 
settlement ;  but  says,  that  Norton  was  not  employed  for  her,  but  as  an 
attorney  for  her  intended  husband ;  admitting  that,  he  might  prepare  the 
articles,  she  having  a  confidence  in  him  from  her  husband's  recommenda- 
tion. So  that  her  general  denial  must  be  taken  with  this  admission ; 
which  leaves  it  open  to  the  proof  of  notice  to  her  agent,  although  personal 
notice  is  denied.  It  is  said,  that  notice  to  her  husband's  attorney  or 
agent  will  not  affect  her;  but  she  has  sufficiently  admitted,  that  he  was 
agent  or  attorney  for  her,  by  bor  consenting  to  his  preparing  the  articles, 
from  a  confidence  in  her  husband.  So  that  no  matter  what  ground  she 
went  upon,  or  on  whose  recommendation  or  advice ;  it  being  the  same  to 
the  plaintiffs :  for  it  would  be  very  inconvenient  and  mischievous  to  take 
inU)  consideration  the  recommendation,  from  whence  an  agency  arose; 
nr)r  is  it  material,  that  the  husband  also  employed  him ;  there  being 
.several  cases  where  in  marriage  settlements  the  same  counsel  or  attorney 
arc  employed  on  both  sides,  who  would  be  both  affected  with  notice  to 
him;  it  Ix  ing  the  same  (o  ji  person  having  an  e(iuity.     There  are  two  very 


CHAP,  v.]  LE  NEVE  V.  LE  NEVE  539 

strong  cases  for  this ;  as  Brotherton  v.  Ilatt,  2  Vern.  574,  where  the 
agent,  whose  notice  affected  the  party,  was  employed  on  both  sides,  as  I 
take  it,  and  which  is  very  clear  authority:  next  Jennings  v.  Moor, 
2  Vern.  609,  S.  C.  ace.  Bro.  P.  C.  278.  (oct.  ed.)  under  title  "Blenkarne  v. 
Jennens."  See  Maddox  v.  Maddox,  ante,  62.  post,  2  Vol.  370;  Merry 
V.  Abney,  1  Ch.  Ca.  38 ;  Sheldon  v.  Cox,  Amb.  624,  where  the  subsequent 
approbation  of  an  agent  affected  the  party  with  notice;  though  that  was 
going  much  farther  than  is  necessary  to  go  in  the  present  case.  These 
cases  clearly  prove  it  to  be  not  material  to  the  plaintiffs,  upon  whose 
recommendation  or  advice  Norton  was  employed,  or  that  he  was  em- 
ployed by  both;  it  being  good  notice  to  her,  that  he  was  employed  by 
her. 

As  to  the  second  question :  it  is  objected  for  the  defendant,  that  notice 
being  denied  by  her  answer,  and  proved  by  one  witness,  it  is  contrary 
to  the  rules  of  the  court  to  admit  it ;  which  is  generally  true :  but  that 
admits  of  this  distinction ;  where  the  defendant's  answer  is  a  clear 
denial  of  a  fact,  which  is  proved  only  by  one  witness,  the  court  will  not 
decree  against  the  answer.  But  where  it  is  not  a  positive  denial  of  the 
same  fact,  but  admits  of  a  difference,  that  it  is  only  a  denial  with  respect 
to  herself,  whereas  in  other  respects  it  will  equally  affect  her,  there  are 
several  cases,  where  the  court  on  one  undoubted  witness  will  decree 
against  the  answer  (see  1  Vern.  ]3G,  161,  post,  97;  2  Atk.  19,  140;  9  Ves. 
275;  12  Ves.  278,  etc.)  ;  then  here  she  denies  only  personal  notice:  which 
is  a  negative  pregnant,  that  still  there  may  be  notice  to  her  agent,  and 
is  a  fact  equally  material.  Then  Norton  swears,  that  a  copy  of  the  first 
article  was  delivered  to  him  previous  to  the  second,  to  take  counsel's 
opinion,  and  that  he  might  have  verbal  notice  before:  which  is  very 
strong;  and  the  copy  was  delivered,  to  see,  if  they  could  get  the  better  of 
this  very  settlement.  So  that  this  is  such  an  evidence  of  notice,  as  to 
be  admitted  here. 

The  last  question  depends  on  two  things :  first,  whether  any  notice 
whatsoever  would  be  sufficient  to  take  away  from  the  defendant  a  pur- 
chaser for  valuable  consideration,  the  benefit  of  the  act?  Secondly, 
whether  notice  to  the  agent  would  do  so? 

The  first  is  of  great  consequence  and  extent.  The  intent  of  the  pre- 
amble of  the  act  was  to  secure  subsequent  purchasers  and  mortgagees, 
against  prior  secret  conveyances,  and  fraudulent  incumbrances;  for  the 
last  of  which  there  was  no  occasion  to  provide.  The  first  means,  that  a 
subsequent  purchaser  having  registered,  should  prevail  against  a  prior 
secret  conveyance,  of  which  he  had  no  notice :  but  if  he  had  notice  of  a 
prior  conveyance,  for  valuable  consideration,  which  was  vested  properly, 
that  is  not  a  secret  conveyance;  the  act  does  not  say,  that  a  subsequent 
purchaser  shall  be  affected  with  no  equity  whatsoever;  therefore,  though 
its  manifest  operation  is  to  vest  the  legal  estate  according  to  the  prior 
registry;  yet  it  is  left  open  to  all  equity;  for  there  is  no  danger  to  the 
subsequent  purchase^,  who  might  refuse,  if  he  had  notice  of  the  prior 


540  LE  XEVE  i-.  LE  XEVE  [part  i. 

good  conveyance.  This  act  therefore  is  properly  compared  to  27  H.  cap. 
10.  of  inroknents  or  bargains  and  sales;  being  much  to  the  same  effect, 
though  not  in  the  same  words.  The  meaning  of  this  act  was,  because 
before,  when  uses  were  in  being,  any  agreement  passed  the  use  to  the 
bargainee  from  the  bargainor ;  which  occasioned  great  mischief ;  being 
prejudicial  to  the  crown,  intangling  purchasers,  and  overturning  the 
common  law  as  the  solemnity  of  livery :  to  prevent  which  it  enacted 
inrolment.  But  the  rule  thereon  ever  since  is,  that  an  inrolment  by  a 
subsequent  bargainee  having  notice  of  a  prior  bargain  for  valuable  con- 
sideration, whether  by  actual  agreement  to  pass  immediately  or  by 
articles,  is  not  material :  for  he  is  equally  affected  with  that  notice,  as 
if  his  conveyance  was  by  feoffment,  or  lease  and  release.  So  that  the 
operation  of  equity  on  both  those  acts  is  the  same,  and  is  reasonable ;  for 
it  were  strange,  that  a  conveyance  in  such  a  form  should  exclude  any 
equity;  which  would  give  an  opportunity  to  take  advantage  of  having 
the  legal  estate  to  commit  fraud :  and  to  this  purpose  the  cases  put  for 
the  plaintiffs  are  material.  As  suppose  a  purchaser  employs  an  attorney, 
takes  a  conveyance,  and  pays  the  money  and  orders  the  attorney  to 
register;  which  he  neglects,  but  purchases  it  himself  and  registers  it,  that 
would  be  a  ground  for  relief :  so  if  it  had  not  been  his  attorney,  but  one 
who  prevailed  with  him  not  to  register :  or  if  it  was  done  by  one,  who 
was  privy  to  the  first  transaction,  and  knew  it  was  not  registered.  These 
cases  clearly  shew,  there  may  be  relief  against  the  force  of  those  words, 
which  gave  a  prior  right  to  the  prior  registry:  which  brings  it  to  the 
consideration  of  the  cases  on  this  head;  which  are  but  three.  The  first 
is.  Lord  Forbes  v.  Denniston,  4  Bro.  P.  C.  189,  octavo  edit.,  and  S.  C. 
13  Vin.  Ab.  550.  and  19  Vin.  Ab.  514,  which  not  being  rightly  understood, 
shall  be  mentioned  particularly.  It  arose  in  Ireland,  where  a  General 
Register  Act,  6  Queen  Anne  (there  is  a  material  difference  between  the 
Registers  Act  for  Ireland  and  those  in  England.  By  the  Irish  act,  6  Ann. 
c.  2,  an  absolute  priority  is  expressly  given  to  the  instrument  first  regis- 
tered. Vide  Sch.  &  Lef.  Rep.  9S.  Et.  ibid.  159,  160— The  registry  of  a 
deed  in  Ireland  is  not.  of  itself,  notice,  ibid.  90.  157)  ;  Lord  Graxard  was 
seised  of  a  large  estate,  of  which  he  was  only  a  tenant  for  life  by  mar- 
riage settlement,  remainder  to  his  first  and  every  other  son  in  tail,  with 
power  to  make  leases  for  three  lives,  or  twenty-one  years  in  possession : 
in  1715.  there  were  tenants,  who  surrendered  and  took  a  new  lease  from 
him  for  three  lives  at  £30  per  ann.  but  it  was  not  registered:  he  becoming 
indebted  came  to  an  agreement  with  his  first  son  Lord  Forbes,  who  thereby 
took  upon  himself  to  pay  his  father's  debts,  and  to  pay  an  annuity  to  him, 
and  another  to  his  wife;  in  consideration  of  which  the  father  conveyed 
his  estate  for  life  to  trustees  for  Lord  Forbe.'j,  but  Lord  Forbes  had  no 
personal  transaction  in  this,  the  whole  being  done  by  one  Stewart ;  who 
during  the  treaty  had  notice  of  a  lease  made,  and  got  the  last  conveyance 
registered,  which  the  lease  was  not.  The  trustees  brought  an  ejectment 
to  recover  the  estate  from  the  lessees;  who  brought  a  bill  for  relief  in  the 


CHAP,  v.]  LE  NEVE  V.  LE  NEVE  541 

Chancery  there,  before  Lord  Chancellor  Middlkton  ;  who  at  first  made  a 
declaration,  rather  titan  a  decree,  that  the  conveyance  to  the  trustees  was 
prejjared  to  destroy  the  lease,  which  was  not  registered ;  and  was  therefore 
fraudulent  against  the  tenants,  though  done  without  the  intention  of  the 
father  or  son ;  and  recommended  it  to  have  the  lease  established ;  if  not 
he  would  give  judgment.  The  parties  not  agreeing,  he  decreed  it  fraudu- 
lent, though  Stewart  alone  had  notice,  and  decreed  a  perpetual  injunction 
against  the  ejectment.  I^pon  appeal  to  the  Lords  here,  it  was  fully 
considered;  and  they  made  a  decree  23d  February,  1722,  which  requires 
explanation:  for  it  is  commonly  cited  as  if  the  judgment  were  affirmed; 
whereas  it  was  reversed;  not  because  the  Lord  Chancellor  there  went  on 
a  wrong  principle;  but  because  he  made  a  wrong  decree  upon  that  prin- 
ciple; for  thereby  the  lease  would  be  good,  though  not  warranted  by  the 
father's  power.  The  Lords  therefore  reduced  it  to  what  was  right; 
giving  the  tenants  full  relief  against  the  defect  of  the  registry;  quieting 
the  possession  during  the  father's  life;  and  granting  an  injunction 
against  the  judgment  in  ejectment :  but  after  the  father's  death  left  it 
open  to  dispute  the  lease,  if  not  made  in  pursuance  of  the  power;  for 
after  death  of  the  father,  who  was  only  tenant  for  life,  the  register  act 
was  out  of  the  case.  The  second  is  the  case  of  Blades  v.  Blades,  1  Eq. 
Ca.  Ab.  358.  pi.  2,  May  2,  1727,  by  Lord  King;  which  is  a  very  material 
authority.  A  will  not  being  registered,  the  heir  at  law  gets  into  posses- 
sion, and  mortgages  to  one  who  registers;  and  so  having  the  legal  estate, 
and  being  a  purchaser  for  valuable  consideration,  insisted  that  the  devisee 
had  no  equity,  to  take  from  him  the  benefit  of  the  registry  act.  But  the 
mortgage  was  declared  fraudulent  and  set  aside,  on  the  foot  of  the 
mortgagee's  having  had  notice  of  the  will's  not  being  registered;  yet  it 
does  not  appear  in  the  bill  or  answers,  that  there  was  any  charge  of 
actual  fraud ;  the  only  charge  being  notice.  The  third  case  happening 
on  the  registry  act  is,  Chival  v.  Niccols  &  Hall,  1  Stra.  664,  in  the 
Exchequer,  December  10,  1725,  which  is  a  clear  authority  for  relief 
against  the  registry  act,  on  the  circumstance  of  notice :  but  it  is  not 
material  to  state  it,  because  there  was  a  charge  of  fraudulent  circum- 
stances in  the  party  claiming  the  benefit  of  the  act ;  and  therefore  so  far 
not  applicable  to  the  present  case.  The  two  other  cases  went  on  notice 
only,  and  the  first  on  notice  to  the  agent ;  for  the  Lord  Chancellor  excused 
the  father  and  son  from  notice  of  the  contrivance.  The  ground,  on  which 
all  the  cases  went,  was  that  taking  the  real  estate  after  notice  of  a 
prior  right  for  valuable  consideration  was  a  fraud,  and  took  away  the 
hona  -fides  of  the  second  purchaser,  and  making  it  mala  fides;  which  is 
agreeable  to  the  definition  of  fraud  in  the  civil  law.  Digest,  lib.  4  tit.  3 
et  fraus  nemini  patrocinari  debet,  3  Co.  Rep.  17Sb. 

This  being  so  on  notice  in  general :  the  next  consideration  under  this 
head  is,  whether  notice  to  the  attorney  or  agent  is  sufficient ;  which  is  a 
consequence  of  the  former  decision.  It  must' be  admitted,  that  some 
notice  would  be  sufficient,  as  actual  personal  notice ;  and  such  as  in  the 


542  LE  NEVE  v.  LE  NEVE  [part  i. 

cases  put  for  the  plaintiff;  and  fraud  in  the  party  being  the  foundation, 
it  is  the  same  whether  in  the  party  himself,  or  the  person  employed. 
These  articles  were  put  into  Norton's  hands,  to  see  if  they  could  get  the 
better  of  them,  and  circumvent  the  issue  by  the  first  marriage;  to  which 
it  is  objected  for  the  defendant,  that  here  may  be  a  fraud  upon  her;  for 
admitting  Norton  knew  of  this,  it  might  be  done  by  collusion  with  the 
husband  to  cheat  her ;  which  indeed  may  be  true,  and  has  happened  in 
several  cases ;  but  ought  not  the  person  who  trusted  and  employed  him,  at 
whosesoever  recommendation,  to  suffer  by  this  fraud,  rather  than  a 
stranger?  The  rule  is,  that  he,  who  trusts  most,  must  suffer  most.  This 
imposition  happened  in  the  two  cases  in  Vern.  and  that  of  Lord  Forbes  : 
and  yet  they  were  affected  with  notice ;  and  otherwise  it  would  overturn, 
several  cases  determined  on  notice  to  agents,  and  make  it  very  precarious; 
for  agents  do  frequently  use  imposition.  But  this  case  is  stronger ;  for 
Norton  was  not  only  her  agent  in  the  transaction,  but  her  trustee ;  and 
there  are  several  cases,  where  notice  to  a  trustee,  who  is  not  barely 
nominal,  being  privy  to  the  transaction  and  accepting  the  trust,  will 
affect  the  party :  so  it  will  here,  and  take  from  the  defendant  the  benefit 
of  the  register  act. 

Then  the  question  is,  what  decree  should  be  made?  It  is  objected,  that 
the  plaintiff's  interest  under  the  articles  is  merely  contingent :  and  it  is 
true,  that  without  issue,  it  will  go  to  the  father,  at  whose  death  the  will 
or  deed  appointing  must  be  known.  Yet  the  plaintiffs  are  intitled  to 
come  here  for  relief:  for  a  contingent  interest  is  such,  as  the  court  will 
take  care  for  the  benefit  of  the  party  when  it  happens. 

Decreed  that  Norton  having  full  notice  of  the  first  marriage  articles 
and  settlement,  the  second  should  be  postponed  thereto ;  and  the  trustees 
in  the  second  to  convey  and  assign  the  leasehold  estate  accordingly,  at 
the  expense  of  the  defendant  the  father :  but  as  to  the  other  defendants 
the  mortgagees,  no  notice  of  the  first  articles  being  proved  on  them, 
the  plaintiffs  have  no  right,  but  on  redeeming  them  for  what  is  due  for 
principal,  interest  and  costs.  But  the  plaintiffs  have  a  clear  right  to  have 
the  leasehold  estate  disincumbered  against  these  mortgages  by  the  father ; 
and  as  the  court  has  in  several  instances  given  credit  to  an  answer,  so  as 
to  make  it  the  foundation  of  an  inquiry,  let  the  master  inquire  what 
portion  or  provision  the  father  gave  his  daughter  upon  her  marriage; 
for  it  would  be  hard  to  direct  a  disincumbrance  as  to  her,  who  had  already 
received  a  portion.  The  father  to  pay  costs  hitherto;  and  had  not  the 
plaintiffs  examined  Norton  as  a  witness,  they  should  have  costs  against 
him. 

Note.  The  case  of  Irons  v.  Kidwel,  October  29,  1728,  was  cited  by  the 
Attorney-General ;  where  the  bill  was  to  set  aside  a  purchase  by  the 
defendant,  subsequent  to  the  plaintiff's  title,  which  was  not  registered, 
whereas  the  defendant's  was:  and  it  was  there  insisted,  that  the  registry 
act  should  not  avail  the  defendant,  because  he  had  notice;  which  notice 
was  only  that  a  bill  was  filed  in  Chancery,  and  that  lis  pendens  should 


CHAP,  v.]  PLUMB  v.  FLUITT  543 

afEect  the  defendant :  but  Lord  King,  though  he  allowed  the  general 
rule  of  notice,  thought  it  not  such  a  notice  as  should  take  away  the  de- 
fendant's benefit  of  the  statute;  for  that  what  did  afEect  the  party's 
conscience,  would  not  be  ground  for  equity  to  relieve.^ 


PLUMB  V.  FLUITT. 
In  the  Exchequer,  1791. 

[2  Anstruther  432.] 

It  was  a  bill  brought  for  a  sale,  in  order  to  obtain  payment  of  two 
mortgages  made  by  one  Basnett  of  the  lands  in  question,  and  to  restrain 
the  defendant  from  proceeding  at  law  to  recover  possession  of  the 
premises. 

It  appeared  that  about  the  beginning  of  the  year  1779,  Basnett  being 
indebted  to  Pattison  Ellames,  and  then  obtaining  a  further  loan  from 
him,  amounting  together  to  the  sum  of  3161.  delivered  to  him  the  title- 
deeds  of  one  of  the  premises  in  question,  called  Massey's  Lodge,  as  a 
security,  and  signed  a  memorandum  stating  himself  to  have  done  so,  and 
binding  himself  to  mortgage  the  same  to  Ellames,  for  his  further  se- 
curity, when  requested.  Being  about  the  same  time  indebted  to  the  plain- 
tiff Plumb  in  the  sum  of  12,0001.  he  deposited  with  him  the  title-deeds  of 
the  other  premises  in  question,  called  Massey's  Office,  or  The  Warren,  as 
a  security  for  that  sum.  The  bill  also  charged  an  undertaking  to  com- 
plete this  security  by  a  mortgage,  when  required;  but  no  memorandum 
to  that  effect  was  entered  into. 

About  the  month  of  June  1779,  Basnett  appearing  to  be  in  declining 
circumstances,  and  then  indebted  to  the  defendant  Fluitt  in  5301.  was 
pressed  by  him  for  pa\anent  or  security  of  that  sum;  and  accordingly, 
on  the  2d  of  July  in  that  year,  executed  to  him  a  mortgage  to  that 
amount  of  both  the  estates  above-mentioned. 

The  circumstances  of  thii  transaction  were  disputed.  The  plaintiff  en- 
deavoured to  fix  the  defendant  with  actual  notice  of  the  deposits,  and  for 
that  purpose  read  the  testimony  of  Basnett,  who  swore  that  he  had  in- 
formed the  defendant  of  the  deposits  of  the  title-deeds  before  the 
execution  of  the  mortgage. 

Eyre,  Chief  Baron. — The  legal  estate  being  in  the  defendants,  the 
question  is,  whether  the  plaintiff  can  raise  a  trust  upon  his  estate,  so  as  to 
gain  a  priority  for  his  own  demand  ? 

It  is  now  fully  settled,  that  a  deposit  of  title-deeds,  as  a  security  for 

*  Same  case  is  reported  at  greater  length  in  3  Atk.  646 ;  2  White  and 
Tudor's  Equity  Cases,  Jth  ed.,  175,  with  elaborate  annotations. 


544  PLUMB  V.  FLUITT  [part  i. 

a  debt,  does  amount  to  an  equitable  mortgage.  If  the  plaintiff  can  prove 
actual  or  constructive  notice  of  the  deposit  in  the  defendant,  it  raises  a 
trust  in  him  to  the  amount  of  that  equitable  mortgage.  As  to  the  evi- 
dence of  actual  notice,  the  testimony  of  Basnett  alone,  unsupported  and 
opposed,  is  too  weak  to  found  a  decree  or  even  to  direct  an  issue  upon  it. 
Swearing  to  the  fraudulent  intention  of  his  own  deed,  he  can  expect  little 
credit  in  a  Court  of  Equity. 

A  great  deal  has  also  been  said  about  constructive  notice.  Constructive 
notice  I  take  to  be  in  its  nature  no  more  than  evidence  of  notice, 
the  presumptions  of  which  are  so  violent  that  the  Court  will  not  allow 
even  of  its  being  controverted.  Thus,  if  a  mortgagee  has  a  deed  put  into 
his  hands  which  recites  another  deed  which  shews  a  title  in  some  other 
person,  the  Court  will  presume  him  to  have  notice,  and  will  not  permit 
any  evidence  to  disprove  it. 

The  only  reason  that  can  raise  in  this  case  a  notion  of  constructive 
notice  is,  that  the  deeds  were  not  forthcoming. 

But  is  it  possible  that  this  circumstance  can,  of  itself,  be  notice  of  the 
hands  into  which  they  are  fallen,  or  the  purpose  to  which  they  have  been 
applied?  At  the  utmost  it  can  only  be  a  circumstance  of  evidence,  to 
shew  that  there  was  reason  for  further  inquiry;  but  being  unsupported 
by  any  other  circumstances,  it  proves  nothing. 

It  is  said,  no  man  will  advance  money  upon  an  estate  without  seeing 
the  title-deeds,  unless  with  a  fraudulent  intention. 

I  wish  I  saw,  in  a  Court  of  Equity,  some  solid  distinction  established 
between  a  consideration  which  is  an  old  debt,  and  a  sum  advanced  de 
novo;  there  certainly  is  a  great  difference;  in  the  one  case  the  creditor 
jumps  at  every  security  he  can  get ;  he  takes  the  deed  of  conveyance  now, 
and  trusts  to  getting  the  title-deed  afterwards:  but  till  such  a  distinction 
is  established,  it  is  difficult  to  apply  the  reasoning  which  would  belong 
to  it. 

The  person  who  takes  the  legal  estate  without  the  deeds,  in  a  case  like 
this,  appears  to  me,  unless  there  be  fraud,  to  be  less  blamable  than  he 
who  takes  the  deeds  without  the  estate. 

Upon  all  the  circumstances,  I  can  see  nothing  in  the  case  that  amounts 
to  constructive  notice. 

With  respect  to  the  general  question,  the  effect  of  leaving  the  title- 
deeds  in  the  hands  of  the  mortgagor,  the  most  intelligible  rule,  and  in  my 
opinion  the  most  agreeable  to  justice,  would  have  been  to  say,  that  if  a 
man  takes,  as  his  security  for  his  mortgage,  a  single  deed,  and  leaves  the 
other  deeds  in  the  hands  of  the  mortgagor,  so  as  to  enable  him  to  commit 
a  fraud,  that  he  shall,  in  all  such  cases,  be  postponed,  without  reference 
to  the  quantity  of  pains  or  diligence  which  he  exercised  to  obtain  the 
deeds;  for  whether  the  pains  be  more  or  less,  the  mischief  is  the  same; 
and  if  I  found  the  rule  so  laid  down,  I  should  have  been  perfectly 
satisfied.  But  it  has  been  decided  otherwise  in  the  late  cases.  Beckett  v. 
Cordley,  Penner  v.  Jemmat,  2  Bro.  B.  G52,  and  Tourle  v.  Rand,  which 


CHAP,  v.]  PLUMB  V.  FLUITT  545 

establish  the  rule  that  nothinj^  but  fraud,  or  gross  and  voluntary  negli- 
g-ence  in  leaving  the  title-deeds,  will  oust  the  priority  of  the  legal 
claimant.  As  for  the  case  of  Goodtitle  v.  Morgan,  the  mortgagee  must 
always  risk  there  being  an  outstanding  term,  in  which  case  the  legal 
estate  is  out  of  him.  The  opinion  of  Justice  Burnett  in  Ryal  v.  Howies, 
when  taken  altogether  and  explained  by  the  context,  is  not  contrary  to 
the  rule  that  is  now  established. 

The  case  of  Mocatta  v.  Murgatroyal  is  a  strong  case ;  but  I  find  no  one 
that  goes  the  length  of  saying,  that  a  failure  of  the  utmost  circumspec- 
tion shall  have  the  same  effect  of  postponing  a  mortgagee  as  if  he  were 
guilty  of  fraud  or  wilful  neglect. 

In  the  present  case,  all  the  negligence,  or  all  the  activity  in  the  world 
would  have  left  the  defendant  in  exactly  the  same  situation  in  which  he 
now  is.  He  took  this  mortgage  as  the  only  security  he  could  get;  if  it 
was  already  mortgaged,  he  was  only  where  he  was  before;  he  seizes  it 
as  a  plank  to  save  something;  for  as  a  second  mortgage  it  was  worth 
something. 

The  plaintiff  having  therefore  failed  in  making  out  his  case  of  fraud, 
either  by  actual  or  constructive  notice,  and  the  general  proposition  not 
being  supported,  which,  if  established,  must  apply  to  purchases  as  well 
as  to  mortgages,  the  bill  must  be  dismissed  with  costs.' 

^  "The  plaintiff  is  to  be  considered  as  a  bona  fide  purchaser.  A  conveyance  in 
trust  to  pay  debts  is  a  valid  conveyance  founded  on  a  good  consideration. 
Stephenson  v.  Hayward,  Prec.  in  Ch.  310.  Nor  do  I  think  that  the  plaintiff 
is  chargeable  with  notice  sufficient  to  postpone  the  operation  of  his  assignment 
in  trust.  All  the  notice  in  the  ease  is  contained  in  the  schedule  to  the  assign- 
ment, stating  that  the  title  to  the  50  lots  is,  in  the  name  of  the  defendant, 
given  as  collateral  secvu'ity  to  pay  certain  notes.  The  notice  that  is  to  break 
in  upon  the  registry  acts  must  be  such  as  will,  with  the  attending  circum- 
stances, affect  the  party  with  fraud :  and  here  is  certainly  no  fraudulent  in- 
tention to  be  imputed  to  the  plaintiff.  Tlie  gi-ound  of  the  numerous  decisions 
on  this  subject  seems  to  be,  the  actual  fraud  of  the  party  in  taking  a  second 
conveyance  with  knowledge  of  the  first,  and  with  intent  to  defeat  it.  There 
may  possibly  be  cases,  as  Lord  Hardwicke  observes  in  Hine  v.  Dodd,  2  Atk. 
275,  in  which  the  registry  acts  are  set  aside  upon  notice  devested  of  fraud; 
but  then  the  proof  must  be  extremely  clear.  In  this  case,  the  notice  arising 
from  the  schedule  was  lame  and  defective.  There  was  no  notice  as  to  the 
amount  of  the  notes,  or  how  many,  or  when  payable;  whereas  every  registry  of 
a  mortgage  must  specify,  with  certainty,  the  mortgage  money,  and  when 
payable.  The  plaintiff  in  this  case  might  not  have  inferred  from  the  schedule 
that  the  defendant  held  any  thing  more  than  a  nominal  title,  and,  perhaps, 
as  a  mere  trustee  upon  some  extinguished  debt.  It  was  not  even  said  to  be 
a  subsisting  debt.  If  notice  that  is  to  put  a  party  upon  inquiry  be  sufficient 
to  break  in  upon  the  policy  and  the  express  provisions  of  the  act,  then,  indeed, 
the  conclusion  would  be  different;  but  I  do  not  apprehend  that  the  decisions 
go  that  length.  Tliis  would  be  too  slight  a  foundation  to  act  on  in  opposition 
to  the  statute.  Here  is  no  evidence  that  any  possession  was  ever  taken  under 
the    mortgage.      There    was    nothing    except    the    loose    information    in    the 


546  GKESS  v.  EVANS  et  al.  [part  i. 

GEESS  V.  EVANS  et  al. 

In  the  Supreme  Court  of  Dakota,  1877. 

[1  Dalcota  387.] 

This  action  was  brought  to  quiet  plaintiff's  title  to  certain  land  set 
out  in  detail  and  to  remove  a  cloud  from  his  title  caused  by  certain 
deeds  executed  and  delivered  to  defendants  for  said  land,  and  which 
were  by  them  placed  on  record  before  the  plaintiff's  deeds  were  recorded.^ 

Shannon,  C.  J. — As  to  the  title  of  the  plaintiff,  Gress,  the  Judge  found 
"  that  the  chain  of  title  from  the  general  government  to  plaintiff  is 
complete,  and  the  deed  from  Byron  M.  Smith  to  plaintiff  vested  in  him 
absolutely  the  fee-simple  title,  where  it  still  remains  unless  it  has  been 
divested  by  the  subsequent  conveyances  to  defendants."  And  as  to  these, 
it  is  further  found  that  "  the  deeds  from  Jane  L.  Titus  and  Moses  S. 
Titus  to  Evans,  and  from  Evans  to  Burbank,  were  executed  and  delivered 
subsequent  to,  but  recorded  before  the  deeds  to  Smith  and  from  Smith  to 
plaintiff." 

And  this,  from  the  pleadings  themselves,  is  the  substantial  paramount 
point  in  the  whole  controversy.  The  complaint  substantially  alleges 
fraudulent  designs  and  intentions  on  the  part  of  the  defendants  in  pro- 
curing and  recording  their  deeds,  and  charges  that  before  the  dates  of 
their  deeds  they  had  full,  complete,  and  actual  notice  of  the  prior  unre- 
corded deed  from  the  Tituses  to  Smith.  The  defendants,  in  their 
answers,  deny  all  fraudulent  purposes,  and  assert  that  they  were  pur- 
chasers in  good  faith  and  for  a  valuable  consideration,  and  had  no  notice, 
either  actual  or  constructive,  and  claim  that  they  should  be  protected. 
The  defendants  having,  admittedly,  their  deeds  first  duly  recorded,  the 
direct  and  vital  issue  before  the  trial  court  was : — were  the  defendants 
purchasers  in  good  faith  and  for  a  valuable  consideration?  Had  they 
notice  either  actual  or  constructive? 

Upon  this  issue  the  findings  are,  that  "  the  deed  from  Jane  L.  and 
M.  S.  Titus  to  Evans,  dated  May  17th,  1871,  as  before  stated,  is  in  form 
a  quit  claim — 'by  these  presents  grant,  bargain,  sell,  release,  and  quit 
claim     ...     all  their  right,  title,  interest,  claim,  or  demand.     .     .     . 

schedule;   and  under  such  an  equitable  and  meritorious  assignment   as   this, 

1  do  not  deem  that  sufTicient  to  render  the  assignment  fraudulent  in  the  hands 
of  the  piaintifT.  Nothing  can  he  stronger  than  the  language  of  Lord  Alvan- 
LEY  in  Jolland  v.  Stainbridge,  3  Ves.  478.  'The  person,'  he  says,  'who 
takes  subsequently,  must  know  exactly  the  situation  of  the  prior  deed,  and 
have  meant  to  defraud.'  All  the  cases  appear  to  me  to  turn  upon  fraud 
resulting  from  the  notice."     Per  Chancellor  Kent  in  Dey  v.  Dunham,  1816, 

2  Johns.  Ch.  182,  189. 

'  A  short  statement  is  substituted  for  tlie  elaborate  facts  of  the  report,  and 
of  the  opinion  only  a  portion  is  printed  relating  to  question  of  notice. 


CHAP,  v.]  GEESS  V.  EVANS  et  al.  547 

To  have  and  to  hold  the  above  quit  claimed  premises  ...  so  that 
neither  the  said  party  of  the  first  part,  their  heirs  or  assigns,  shall  have 
any  right,  title,  or  interest  in  and  to  the  aforesaid  premises.'  "  "  The 
second  deed  to  Evans,  dated  August  11th,  1871,  is  the  same  in  form,  with 
the  exception  of  the  covenants  which  are  as  follows :  '  and  the  said 
party  of  the  first  part  .  .  .  doth  covenant  with  the  said  party  of 
the  second  part  .  .  .  that  they  have  not  made,  done,  or  executed, 
or  suffered  any  act  or  thing  whatsoever  whereby  the  above  premises, 
or  any  part  thereof,  now  are,  or  at  any  time  hereafter  shall  or  may  be 
imperilled,  charged,  or  incumbered  in  any  manner  whatsoever.' " 

The  next  important  finding  is : — "  That  Evans  was  not  a  purchaser  in 
good  faith,  but  that  he  obtained  his  deed  by  fraud  and  misrepresenta- 
tion." And  again  that  "  it  is  disclosed  by  the  evidence  that  Mr.  and  Mrs. 
Titus  were  induced  to  make  this  deed  by  the  representations  of  Evans 
that  he  was  the  person  entitled  to  it;  that  he  was  the  owner  of  the  land, 
but  that  there  was  some  defect  in  his  title  which  he  wished  remedied,"  etc. 
And  furthermore  it  is  found,  that  "  when  he  "  (Evans)  "  applied  to  Mr. 
Titus  for  a  deed  he  was  told  by  Titus  that  they  had  sold  the  scrip,  and 
that  they  did  not  claim  any  right  in  the  land,  that  they  considered  the 
land  sold  so  far  as  they  were  concerned."  To  this  the  Judge  imme- 
diately adds  as  follows :  "  Evans  knew  he  was  not  the  purchaser  of  the 
scrip,  or  his  assignee,  and  he  made  no  inquiry  as  to  who  had  pur- 
chased the  scrip,  or  whether  they  had  previously  executed  a  deed." 

There  is  another  finding  relative  to  non-inquiry  from  Smith,  which 
concludes  by  stating  that  Evans  "at  no  time  asked  him"  (Smith)  "if  he 
had  received  a  deed,  although  from  previous  conversations  he  must  have 
known  that  Smith  had,  or  claimed  to  have,  some  interest  in  the  land." 

But  as  to  the  defendant,  Evans,  there  is  yet  another  significant  finding, 
which  is  as  follows :  "  The  evidence  clearly  establishes  the  fact  that  he  " 
(Evans)  "  paid  no  consideration  whatever.  No  consideration  was  men- 
tioned or  alluded  to.  After  the  deed  was  executed  and  delivered,  Evans 
made  a  present  to  Mrs.  Titus  of  ten  dollars,  as  he  then  stated,  to  com- 
pensate them  for  their  trouble.  It  was  neither  given  nor  received  as 
a  consideration  for  the  deed.  The  grantors  neither  asked  nor  expected 
anything,  but  made  the  deed  to  Evans  because  they  supposed  him  to  be 
the  party  entitled  to  it,  and  for  the  purpose  of  curing  some  defect  in  his 
title." 

Such  are  the  prominent  findings  of  fact  in  relation  to  the  defendant, 
Evans,  on  the  issue  of  his  being  a  purchaser  in  good  faith  and  for  a 
valuable  consideration.  And  we  must  next  turn  attention  to  the  findings 
regarding  the  other  defendant,  Burbank.  As  to  him,  the  Judge  has 
found  as  follows,  to-wit :  "  He  "  (Burbank)  "  admits  that  he  was  told 
that  Smith  had  a  power  of  attorney  from  Titus  and  husband  to  locate 
certain  scrip  upon  the  land  in  controversy,  and  might  hold  a  power  of 
attorney  to  convey  said  land,  or  a  deed  to  the  same.  It  does  not  appear 
that  he  made  any  effort  to  find  out  anything  further  in  relation  to  the 


548  GEESS  v.  EVANS  et  al.  [part  i. 

matter,  except  to  examine  the  records.  He  did  not  inquire  of  Smith,  or 
attempt  to  ascertain  his  address  or  anything  of  the  kind.  It  does  not 
even  appear  that  he  was  ignorant  of  Smith's  whereabouts,  or  that  he 
might  not  have  readily  applied  to  him  for  information.  He  claims  to 
have  inquired  of  others,  but  their  names  he  does  not  disclose." 

From  these  findings,  the  trial  court  deduced  the  conclusions  that  "  Bur- 
bank  cannot  stand  as  a  hona  fide  purchaser  without  notice,"  and  that 
Evans  was  in  the  same  position ;  and  that  "  the  equities  of  this  cause  are 
with  the  plaintiff,  and  that  the  deeds  to  defendants  are  fraudulent  and 
void  as  against  him."     Is  there  any  error  in  this? 

Our  Civil  Code  makes  void  a  conveyance  not  recorded,  only  as  against 
a  subsequent  purchaser  of  the  same  property,  or  any  part  thereof  in 
good  faith  and  for  a  valuable  consideration.  See  Civil  Code  of  1866, 
§  530;  revised  Codes,  page  341,  §  671.  Actual  notice  of  a  prior  un- 
recorded conveyance,  or  of  any  title,  legal  or  equitable,  to  the  premises,  or 
knowledge  and  notice  of  any  facts  which  would  put  a  prudent  man  upon 
inquiry,  impeaches  the  good  faith  of  the  subsequent  purchaser.  There 
should  be  proof  of  actual  notice  of  prior  title,  or  prior  equities,  or  circuna- 
stances  tending  to  prove  such  prior  rights,  which  affect  the  conscience 
of  the  subsequent  purchaser.  Actual  notice,  of  itself,  impeaches  the 
subsequent  conveyance.  Proof  of  circumstances,  short  of  actual  notice, 
which  should  put  a  prudent  man  upon  inquiry,  authorizes  the  Court, 
or  jury,  to  infer  and  find  actual  notice. 

Or  to  express  it  exactly,  good  faith  consists  in  an  honest  intention  to 
abstain  from  taking  any  unconscientious  advantage  of  another,  even 
through  the  forms  or  technicalities  of  law,  together  with  an  absence  of  all 
information  or  belief  of  facts  which  would  render  the  transaction  \n\- 
conscientious.  And  notice  is  either  actual  or  constructive.  Actual 
notice  consists  in  express  information  of  a  fact.  Constructive  notice  is 
notice  imputed  by  the  law  to  a  person  not  having  actual  notice ;  and 
every  person  who  has  actual  notice  of  circumstances  sufiicient  to  put 
a  prudent  man  upon  inquiry  as  to  a  particular  fact,  and  who  omits  to 
make  such  inquiry  with  reasonable  diligence  is  deemed  to  have  con- 
structive notice  of  the  fact  itself.  Civil  Code  of  1866,  §§  2007-8-9-10-11; 
Ptevised  Codes,  pages  504-5,  §§  2105-6-7-8-9. 

Viewed  in  the  light  of  this  law  on  the  subject,  from  the  findings, 
clearly  the  plaiutiflf's  unrecorded  conveyances  were  not  void  as  against 
Evans;  and  as  the  admissions  of  Burbank  are  to  be  taken  most  strongly 
against  himself,  he  must  be  considered  as  having  had  notice  of  circum- 
stances sufficient  to  put  a  prudent  man  upon  inquiry,  and  having  omitted 
to  make  such  inquiry  with  reasonable  diligence,  he  must  be  deemed 
to  have  had  constructive  notice  of  the  fact  itself. 

The  learned  Judge  who  tried  the  issues,  arrived  at  a  conclusion  of 
law  which  in  a  case  like  the  present,  so  pregnant  with  other  over- 
shadowing circumstances,  it  is  unnecessary  now  to  examine  or  determine. 
He  was  of  opinion  that  by  a  deed  which  (like  those  to  Evans)  simply 


CHAP,  v.]       SIMMONS  CKEEK  COAL  CO.  v.  DOEAN  549 

purports  to  pass  "the  right,  title,  interest,  claim,  or  demand"  of  the 
grantor,  the  grantee  does  not  obtain  anything  which  the  grantor  had 
previously  parted  with,  although  the  subsequent  deed  was  first  re- 
corded; that  such  grantee  cannot  be  regarded  as  a  bona  fide  purchaser 
without  notice;  that,  therefore,  Burbank  took  nothing  under  his  deed 
from  Evans,  as  Evans  had  nothing  to  convey,  and  that  the  terms  of 
the  quit  claim  conveyances  to  Evans  were,  of  theriiselves,  notice  to  both 
Evans  and  Burbank.  Brown  v.  Jackson,  3  Wheaton,  450;  Oliver  v. 
Piatt,  3  How.  396;  May  v.  McClair,  11  Wallace,  232;  Smith's  Heirs  v. 
Bank  of  Mobile,  21  Alabama,  124;  Eogers  v.  Burchard,  34  Texas,  441; 
Bragg  V.  Paulk,  42  Maine,  502 ;  Walker  v.  Lincoln,  45  Maine,  67 ;  Doe  v. 
Eeed,  5  Ills.  117;  Coe  v.  Persons  Unknown,  43  Maine,  452;  Martin  v. 
Brown,  4  Minn.  282;  Everett  v.  Ferris,  16  Minn.  26;  Marshall  v.  Eoberts, 
18  Minn.  405.  But  see  Graff  v.  Middleton,  43  Cal.  341 ;  Jackson  v.  Fish, 
10  Johns.  456 ;  3d  Wash,  on  E.  P.  314,  417 ;  33  N.  H.  22 ;  34  Miss.  18 ;  23 
Ver.  104 ;  5  Iowa,  66 ;  11  N.  H.  74 ;  23  Texas,  614,  and  other  authorities 
cited. 

It  would  seem  there  is  much  in  the  authorities  quoted,  although 
they  are  somewhat  conflicting,  to  sustain  the  positions  assumed  by  him. 
At  all  events,  whatever  the  fact  may  have  amounted  to,  Burbank  was 
cognizant  from  the  records  that  his  grantor  had  only  "the  right,  title, 
interest,  claim  or  demand"  of  his  grantors,  in  and  to  the  land. 


In  Simmons  Creek  Coal  Co.  v.  Doran  (1891),  142  II.  S.  417,  Fuller, 
C.  J.,  said :  The  coal  company  insists,  however,  that  it  occupies  the  posi- 
tion of  a  bona  fide  purchaser  for  value  without  notice,  and  as  such  is 
entitled  to  the  protection  of  the  court. 

None  of  the  original  deeds  in  appellant's  chain  appear  to  have  been  pro- 
duced on  the  hearing,  though  certified  copies  were  attached  to  the  plead- 
ings, but  no  independent  evidence  was  adduced  of  the  payment  by  any  of 
the  defendants  of  any  money  whatever.  As  against  complainant  the  re- 
citals in  these  deeds  cannot  be  relied  on  as  proof  of  the  payment  of  the 
purchase-money.  Boone  v.  Chiles,  10  Pet.  177 ;  Flagg  v.  Mann,  2  Sumner, 
486 ;  Kyles  v.  Tait.  6  Gratt.  44 ;  Warren  v.  Syme,  7  West  Va.  474 ;  Brown 
V.  Welch,  18  Illinois,  343 ;  Lloyd  v.  Lynch,  28  Penn.  St.  419. 

Apart  from  this  we  hold  appellant  chargeable  with  notice.  The 
rule  is  thus  stated  by  the  Virginia  Court  of  Appeals,  in  Burwell's  Adm'rs 
V.  Fauber,  21  Gratt.  446,  463 :  "  Purchasers  are  bound  to  use  a  due 
degree  of  caution  in  making  their  purchases,  or  they  will  not  be  entitled 
to  protection.  Caveat  emptor  is  one  of  the  best  settled  maxims  of  the 
law,  and  applies  exclusively  to  a  purchaser.  He  must  take  care,  and  make 
due  inquiries,  or  he  may  not  be  a  bona  fide  purchaser.  He  is  bound  not 
only  by  actual,  but  also  by  constructive  notice,  which  is  the  same  in  its 
effect  as  actual  notice.    He  must  look  to  the  title  papers  under  which  he 


550  SIMMONS  CKEEK  COAL  CO.  v.  DORAN  [part  i. 

buys,  and  is  charged  with  notice  of  all  the  facts  appearing  upon  their 
face,  or  to  the  knowledge  of  which  anything  there  appearing  will  conduct 
him.  He  has  no  right  to  shut  his  eyes  or  his  ears  to  the  inlet  of  informa- 
tion, and  then  say  he  is  a  hona  fide  purchaser  without  notice."  Jones 
r.  Smith,  1  Hare,  43,  55 ;  Le  Neve  v.  Le  Neve,  3  Atk.  646 ;  S.  C.  1  Ves. 
Sen.  64 ;  S.  C.  2  Leading  Cas.  Eq.  109,  4th  Am.  ed. ;  and  Brush  v.  Ware, 
15  Pet.  93,  114,  are  cited. 

In  Mundy  v.  Vawter,  3  Gratt.  518,  relied  on  by  appellant,  the  registry 
01  a  deed  of  "  all  the  estate  both  real  and  personal,  to  which  the  said 
James  was  in  any  manner  entitled  in  law  or  in  equity,"  was  held  not  to 
be  notice  in  point  of  law  to  a  subsequent  purchaser  of  the  existence 
of  the  deed,  nor  would  notice  in  point  of  fact  of  such  existence 
and  contents  affect  such  purchaser,  unless  he  had  further  notice  that  the 
land  purchased  by  him  was  embraced  by  the  provision  of  the  deed ;  "and 
the  proof  of  such  notice,  whether  direct  or  positive,  or  circumstantial 
and  presumptive,  must  be  such  as  to  affect  the  conscience  of  the  purchaser, 
and  is  not  sufficient  if  it  merely  puts  him  upon  inquiry,  but  must  be 
so  strong  and  clear  as  to  fix  on  him  the  imputation  of  mala  fides."  But 
the  latter  branch  of  this  ruling  was  disapproved  of  in  Warren  v.  Syme, 
7  West  Va.  474 ;  and  in  Fidelity  Company  v.  Railroad  Company,  32  West 
Va.  244,  259,  it  is  said  that  "  whatever  is  sufficient  to  put  a  person  on 
inquiry  is  considered  as  conveying  notice;  for  the  law  imputes  a  personal 
knowledge  of  a  fact,  of  which  the  exercise  of  common  prudence  might 
have  apprised  him.  When  a  subsequent  purchaser  has  actual  notice  that 
the  property  in  question  is  incumbered  or  affected,  he  is  charged  con- 
structively with  notice  of  all  the  facts  and  instruments,  to  the  knowledge 
of  which  he  would  have  been  led  by  an  inquiry  into  the  incumbrance  or 
other  circumstance  affecting  the  property  of  which  he  had  notice." 

Lord  Hardwicke  observed  in  Le  Neve  v.  Le  Neve,  Amb.  436;  3  Atk. 
646 ;  1  Ves.  Sen.  140 :  "  That  the  taking  of  a  legal  estate,  after  notice 
of  a  prior  right,  makes  a  person  a  mala  fide  purchaser;"  and  the  notes 
to  that  case  in  2  Leading  Cases  in  Eq.  109,  discuss  at  length  the  doctrine 
of  knowledge,  actual  notice,  express  or  implied,  and  constructive  notice, 
with  abundant  citation  of  authority.  The  conclusion  of  the  Ameri- 
can editor  is  that  actual  notice  embraces  all  degrees  and  grades  of 
evidence,  from  the  most  direct  and  positive  proof,  to  the  slightest  cir- 
cumstances from  which  a  jury  would  be  warranted  in  inferring  notice, 
while  constructive  notice  is  a  legal  inference  from  established  facts,  and, 
like  other  legal  presumptions,  does  not  admit  of  dispute. 

Mr.  Justice  Story  in  his  work  on  Equity  Jurisprudence,  §  399,  adopts 
the  language  of  Chief  Baron  Eyre,  in  Plumb  v.  Fluitt,  2  Anstr.  432,  438, 
that  constructive  notice  is  in  its  nature  no  more  than  evidence  of  no- 
tice, the  presumption  of  which  is  so  violent,  that  the  court  will  not  allow 
even  of  its  being  controverted. 

In  later  editions  of  that  work.  Judge  Redfikld,  lltli  ed.  §  410,  a,  says 
that  the  term  constructive  notice  "is  applied,  indiscriminately,  to  such 


CHAP,  v.]       SIMMONS  CREEK  COAL  CO.  v.  DORAN  551 

notice  as  is  not  susceptible  of  being  explained  or  rebutted,  and  to 
that  which  may  be.  It  seems  more  appropriate  to  the  former 
kind  of  notices.  It  will  then  include  notice  by  the  registry,  and  notice 
by  lis  pendens.  But  such  notice  as  depends  upon  possession,  upon 
knowledge  of  an  agent,  upon  facts  to  put  one  upon  inquiry,  and  some 
other  similar  matters,  although  often  called  constructive  notice,  is  rather 
implied  notice,  or  presumptive  notice,  subject  to  be  rebutted  or  explained. 
Constructive  notice  is  thus  a  conclusive  presumption  or  a  presumption 
of  law,  while  implied  notice  is  a  mere  presumption  of  fact." 

Vice-Chancellor  Wigram  in  Jones  v.  Smith,  supra,  laid  it  down  that 
cases  in  which  constructive  notice  had  been  established,  resolved  them- 
selves into  two  classes;  first,  those  in  which  the  party  charged  had  ac- 
tual notice  that  the  property  in  dispute  was  in  some  way  affected, 
and  the  court  has  thereupon  bound  him  with  constructive  notice  of  facts 
to  a  knowledge  of  which  he  would  have  been  led  by  an  inquiry  into  the 
matters  affecting  the  property,  of  which  he  had  actual  notice;  and,  sec- 
ondly, those  where  the  court  has  been  satisfied  that  the  party  charged 
had  designedly  abstained  from  inquiry  for  the  purpose  of  avoiding  no- 
tice. If  there  is  not  actual  notice  that  the  property  is  in  some  way 
affected  so  that  the  case  does  not  fall  within  the  first  class,  and  no 
fraudulent  turning  away  from  a  knowledge  of  facts  which  the  res  gestae 
would  suggest  to  a  prudent  mind  or  gross  and  culpable  negligence,  so 
as  to  bring  it  within  the  second,  then  the  doctrine  of  constructive  no- 
tice would  not  apply. 

Each  case  must  be  governed  by  its  own  peculiar  circumstances,  and 
in  that  in  hand  we  think  appellant  either  had  actual  knowledge,  or  ac- 
tual notice  of  such  facts  and  circumstances,  as  by  the  exercise  of  due 
diligence  would  have  led  it  to  knowledge  of  complainant's  rights,  and  that 
if  this  were  not  so,  then  its  ignorance  was  the  result  of  such  gross  and 
culpable  negligence  that  it  would  be  equally  bound. 

Again,  actual  and  unequivocal  possession  is  notice,  because  it  is  incum- 
bent on  one  who  is  about  to  purchase  real  estate  to  ascertain  by  whom 
and  in  what  right  it  is  held  or  occupied ;  and  the  neglect  of  this  duty  is 
one  of  the  defaults  which,  unexplained,  is  equivalent  to  notice.  2  Lead. 
Cas.  Eq.  180;  Landes  v.  Brant,  10  How.  348;  McLean  v.  Clapp,  141  U.  S. 
429,  436 ;  French  v.  Loyal  Company,  5  Leigh,  627,  641 ;  Western  Mining 
Company  v.  Peytona  Coal  Company,  8  West.  Va.  406,  441;  Core  v.  Fau- 
pel,  24  West  Va.  238;  Morrison  v.  Kelley,  22  Illinois,  610.  "Posses- 
sion," said  Walker,  J.,  in  the  case  last  cited,  "may  be  actual  or  con- 
structive; actual,  when  there  is  an  occupancy,  such  as  the  property  is 
capable  of,  according  to  its  adaptation  to  use;  constructive,  as  when  a 
person  has  the  paramount  title,  which,  in  contemplation  of  law,  draws 
to  and  connects  it  with  the  possession.  But  to  be  adverse  it  must 
"be  a  pedis  possessio,  or  an  actual  possession."  In  Ewing  v.  Burnett,  11 
Pet.  41,  53,  it  was  held  that  neither  actual  occupancy  nor  cultivation 
nor   residence    necessary   to    constitute    actual    possession;    that    where 


552  SIMMONS  CREEK  COAL  CO.  v.  DORAN  [part  i. 

the  property  is  so  situated  as  not  to  admit  of  any  permanent  useful  im- 
provements, and  the  continued  claim  of  the  party  has  been  evidenced 
by  public  acts  of  ownership,  such  as  he  would  exercise  over  property 
which  he  claimed  in  his  own  right,  and  would  not  exercise  f)vcr  prop- 
erty he  did  not  claim,  such  possession  will  create  a  bar  under  the  statute 
of  limitations;  that  what  acts  may  or  may  not  constitute  a  possession 
are  necessarily  varied,  and  depend  to  some  extent  upon  the  nature,  local- 
ity and  use  to  which  the  property  may  be  applied,  the  situation  of  the 
parties,  and  a  variety  of  circumstances  which  have  necessarily  to  be  taken 
into  consideration  in  determining  the  question.  And  so  possession  of  an 
improved  portion  of  a  tract  of  land,  under  a  conveyance  in  fee  of  the 
whole,  is  construed  to  be  co-extensive  with  the  grant.  And  where  a 
party  purchases  land  adjoining  a  tract  of  which  he  is  already  in  the 
occupancy,  he  will  be  considered  as  at  once,  in  point  of  law,  in  the 
possession  of  the  newly-acquired  tract,  when  the  latter  is  vacant,  or  at 
least  not  held  under  an  adverse  possession. 

^  For  further  consideration  of  the  question  of  notice,  see  the  following 
weighty  cases:  Rogers  v.  Jones,  1836,  8  N.  H.  264,  per  Parker,  J.;  Rorer 
Iron  Co.  V.  Trout  &  Wife,  1887,  83  Va.  397;  Robinson  v.  Crenshaw,  1888, 
84  Va.  348. 


CHAP,  v.]  GYNN  v.  EDMONDS  553 


Section  5.    Estoppel/ 


GYNN  V.  EDMONDS. 
In  Chancer\,  before  Lord  Keeper  Coventry,  1625-40.^ 

[Nelson's   Chancery  28.] 

Rowland  Owen  being  seised  in  fee  of  the  premises  in  question,  made  a 
lease  thereof  to  the  defendant  Edmonds  for  21  years,  and  afterwards 
granted  the  reversion  to  the  plaintiff  Gynn.  The  term  expired,  but 
Edmonds  refused  to  deliver  the  possession,  alledging  that  before  Rowland 
Owen  had  any  estate  or  interest  in  the  premises,  one  Owen  ap.  John  was 
seised  thereof  in  fee,  and  made  a  lease  to  the  said  Edmonds  for  21  years, 
and  afterwards  granted  the  revision  to  one  Griffith  Edmonds,  brother  to 
the  defendant,  who  released  his  right  to  the  defendant,  and  affirmed  that 
the  first  lease  made  by  Rowland  Owen  was  only  to  prevent  suits  at  law 
which  might  arise,  for  that  after  the  said  release  Griffith  Edmonds  had 
delivered  the  deed,  viz.,  the  grant  of  the  reversion,  to  the  said  Rowland 
Owen,  who  was  heir  at  law  to  Owen  ap.  John,  the  grantor,  and  that  the 
acceptance  of  the  lease  from  Rowland  Owen  ought  only  to  be  an  estoppel 
during  the  term.    But  it  appearing  to  the  Court,  that  Griffith  Edmonds, 

1  In  Morgan  v.  Railroad  Co.,  1877,  96  U.  S.  716,  720,  Mr.  Justice  Swayne 
uttered  a  happy  epigram  which  states  the  law  and  its  reason  in  a  single 
sentence.  "It  proceeds  upon  the  ground  that  he  who  has  been  silent  as  to 
his  alleged  rights  when  he  ought  in  good  faith  to  have  spoken,  shall  not  be 
heard  to  speak  when  he  ought  to  be  silent." 

The  following  cases  at  law  are  fundamental  statements  of  the  doctrine. 
Pickering  v.  Bush,  1812,  15  East  45;  Pickard  v.  Sears,  1837,  6  A.  &  E.  469; 
Freeman  v.  Cooke,  1848,  2  Ex.  654,  per  Baron  Parke;  Cornish  v.  Abington, 
1859,  4  Hurl.  &  N.  549;  See  more  especially  Horn  v.  Cole,  1868,  51  N.  H. 
287,  where  Chief  Justice  Perley  discusses  the  doctrine  in  a  masterly  way  and 
enumerates  the  authorities.  For  detailed  treatment  of  the  law  see  2  Pom- 
eroy's  Equity  Jurisprudence,  3d  ed.,  §§  801-821;  Bigelow's  Estoppel,  5th  ed., 
556-672;  Ewart's  Exposition  of  the  Principles  of  Estoppel  by  Misrepre- 
sentation. 

^  Lord  Hardwtcke  has  stated  that  Lord  Keeper  Co\'entry  was  "very  able 
and  contributed  a  great  deal  towards  modelling  the  Court  of  Chancery." 
(Letter  to  Lord  Kames  in  Parke's  Chancery  508.) 

And  another  and  later  Lord  Chancellor,  while  criticising  his  politics,  says: 
"As  an  Equity  Judge,  he  seems  to  have  given  entire  satisfaction.  He  cer- 
tainly must  have  been  familiarly  acquainted  with  the  law  of  England,  and 
with  the  doctrines  and  practice  of  the  Court  of  Chancery."  (2  Campbell's 
Lives  of  the  Chancellors,  ch.  LXII.) 


554  HOBBS  v.  NORTON  [part  i. 

the  grantee  of  the  reversion,  and  under  whom  the  defendant  claimed  by 
vertue  of  the  said  release,  had  made  a  feoffment  of  the  premises  to  the 
plaintiff  Gwynn,  Anno  7  Jac,  which  was  executed  by  Livery  and  Seisin, 
and  to  which  the  defendant  Edmonds  was  a  witness,  and  for  that  the 
defendant's  title  by  the  release  was  never  set  on  foot  until  the  lease  was 
expired.  Therefore  the  possession  was  decreed  to  Gwynn  and  his  heirs, 
according  to  the  grant  of  the  reversion  to  him  by  Rowland  Owen  as 
aforesaid. 


HOBBS  V.  NORTON. 

In  Chancery,  before  Lord  Keeper  North,  1683. 

[1  Vernon  136.] 

Sir  George  Norton's  younger  brother  having  an  annuity  of  £100 
per  annum,  charged  on  lands  by  his  father's  will,  contracts  with  Mr. 
Hobbs  for  selling  to  him  this  annuity.  Mr.  Hobbs  goes  to  Sir  George 
Norton  and  tells  him  he  was  about  to  buy  this  annuity  of  his  younger 
brother,  and  desired  to  know  of  him,  if  his  younger  brother  had  a  good 
"title  to  it,  and  whether  his  father  was  seized  in  fee  at  the  time  of  the 
making  the  will,  and  whether  the  will  was  ever  revoked;  Sir  George 
Norton  told  him,  he  believed  his  brother  had  a  good  title  to  it,  and  that 
he  had  paid  him  this  annuity  these  twenty  years,  but  withal  told  him, 
that  he  heard  there  was  a  settlement  made  of  his  father's  lands  before 
the  will;  and  that  the  said  settlement  was  in  Sir  Timothy  Baldwin's 
hands,  and  that  he  had  never  seen  it,  and  therefore  could  not  tell  him 
what  the  contents  of  it  were,  but  encouraged  him  to  proceed  in  his 
purchase  telling  him,  he  had  not  only  paid  his  brother  his  annuity  to  that 
time,  but  had  paid  to  his  sisters  £3000  lender  the  same  will.  Afterwards 
Sir  George  Norton  gets  this  settlement  into  his  hands,  and  would  avoid 
this  annuity,  the  lands  being  thereby  entailed.  Hobbs's  bill  was  to  have 
this  annuity  decreed,  or  repayment  of  his  purchase  money. 

The  cause  coming  on  to  be  heard,  there  was  no  proof  that  Sir  George 
Norton,  at  the  time  he  encouraged  Hobbs  to  proceed  in  this  pur- 
chase, had  any  notice  of  this  settlement.  But  one  witness  swore,  that 
Sir  George  promised  to  confirm  the  annuity  to  Hobbs :  but  that  being 
but  by  one  witness,  and  contrary  to  Sir  George  Norton's  answer,  was 
looked  upon  as  no  evidence.  It  not  being  probable  that  Sir  George 
should  agree  to  confirm  this  annuity,  for  then  he  would  have  been  made 
a  party  to  the  deed. 

Lord  Keeper  decreed  the  payment  of  the  annuity,  pvirely  on  the  en- 
couragement Sir  George  gave  Hobbs  to  proceed  in  his  purchase,  and 
that  it  was  a  negligent  thing  in  him  not  to  inform  himself  of  his  own 


CHAP,  v.]  HUNSDEN  v.  CHEYNEY  555 

title,  that  thereby  he  might  have  informed  the  purchaser  of  it,  when  he 
came  to  enquire  of  him:  and  therefore  decreed  Sir  George  to  confirm 
the  annuity  to  Hobbs. 

But  as  to  the  case  between  Sir  George  and  his  younger  brother,  that 
might  admit  of  another  consideration,  being  it  was  in  proof  in  the 
cause,  that  the  younger  brother  all  along  was  knowing  of  this  settle- 
ment, and  therefore  possibly  he  should  not  have  taken  advantage  of 
drawing  in  a  stranger  to  purchase  his  title:  but  the  cause  between  them 
not  being  ready  for  hearing,  was  left  to  come  on,  as  it  could,  by  the 
course  of  the  court.' 


HUNSDEN  V.  CHEYNEY. 
In  Chancery,  before  the  Lords  Commissioners,  1690. 

[2    Vernon    150.] 

The  mother  to  whom  a  term  was  limited  in  tail,  stands  by  at  a  treaty 
of  a  marriage,  intended  to  be  had  betwixt  her  son  and  the  plaintiff's 
mother,  and  hears  her  son  upon  that  marriage  declare,  that  the  term 
was  to  come  to  him  after  the  death  of  his  mother,  and  is  a  witness  to  the 
■deed,  whereby  the  son  took  upon  him  to  settle  the  reversion  of  the 
term  expectant  on  his  mother's  decease,  on  the  issue  of  that  marriage, 
and  did  not  mention  or  insist  she  had  more  than  an  estate  for  life 
therein:  the  bill  was  brought  by  the  son  of  that  marriage,  complain- 
ing that  his  grandmother,  notwithstanding  the  premises,  gave  out  she 
was  tenant  in  tail  of  the  term,  and  could  dispose  of  the  term  at  her 
pleasure,  and  threatened  to  alien  it,  and  prayed  the  benefit  of  the  mar- 
riage-settlement, and  that  the  defendant  might  be  compelled  to  make  it 
good,  as  to  the  reversion  of  the  term  after  her  decease. 

^In  Storrs  v.  Barker,  1822,  6  Johns  Ch.  166,  170,  the  learned  Chancellor 
Kent  says,  that  Dyer  v.  Dyer,  2  Ch.  Cas.  108,  is  the  earliest  case  on  this  point. 
The  principal  case  arose  about  the  same  time.  In  referring  to  the  latter,  the 
Chancellor  says:  '"The  facts  in  this  case  are  so  exceedingly  analogous  to  those 
in  Dyer  v.  Dyer,  that  one  is  strongly  induced  to  think  it  must  be  the  same, 
under  different  names,  and  which,  as  we  have  seen,  had  been  directed  a  short 
time  before,  to  stand  over.  Be  this  as  it  may,  it  appears  that  Lord  Chancellor 
Nottingham  gave  no  decision  on  the  question,  whether  ignorance  of  a  man's 
legal  right  will  protect  him  against  the  consequences  of  encouraging  others 
to  deal  with  his  property  as  their  own.  The  first  authoritative  decision  on 
this  point  was  made  by  Lord  Keeper  North,  who  succeeded  to  the  great  seal 
in  January,  1683,  as  Lord  Nottingham's  successor." 

See  also  in  Tilton  v.  Nelson,  1857,  27  Barb.  595;  Smith  v.  Cramer,  1874, 
39  Iowa  413;  and  note  in  10  Am.  Dec.  328-329. 


556  DEAFER  &  AL.  v.  BORLACE,  IVE  &  AL.  [part  i. 

And  though  it  was  insisted  on  for  the  defendant,  that  she  was  not 
guihy  of  any  fraud  or  ill  practice,  but  was  ignorant  of  her  title,  and 
knew  not  that  she,  as  being  tenant  in  tail  of  a  term,  might  dispose  of  it, 
and  was  no  party  to  the  marriage  agreement,  or  concerned  in  it,  and 
that  it  might  rather  be  presumed,  that  she  was  imposed  upon  by  her 
son  and  made  to  believe  that  she  had  but  an  estate  for  life,  when 
she  had  in  truth  the  ownership  of  the  whole  term  in  her.  Yet 
the  court  decreed  it  for  the  plaintiff. 

And  as  a  like  case  cited  the  case  of  Dr.  Amyas,  who  stood  by  and 
suffered  a  purchaser  to  go  on  without  disclosing  of  his  title,  and  the  case 
between  Charles  Clare  and  the  Earl  of  Bedford,  who  only  witnessed  a 
deed,  and  told  the  money  lent  at  his  master's  chamber,  being  his 
clerk,  and  for  that  alone  had  his  own  security  postponed.' 


DRAPER  &  AL.  v.  BORLACE,  IVE  &  AL. 

In  Chancery,  1699. 

[2  Vernon  370.] 

Draper.  Naylor  and  Hill  having  lent  Borlace  £8,000,  Naylor  £3,000, 
Draper  £3,000  and  Hill  £2,000  on  a  mortgage  in  fee  of  his  manor  of 
Treludro,  and  on  a  statute  of  £1 6,000  penalty,  as  a  farther  security ;  the 
said  Hill  being  a  counsellor  of  Lincoln's-Inn,  was  afterwards  advised 
with  by  Mr.  Ive,  in  lending  £2,000  to  Borlace  on  a  mortgage  of  the 
manor  of  Gargoll,  being  a  lease  for  three  lives  held  of  the  Bishop  of 
Exeter ;  Mr.  Hill  encouraged  Ive's  lending  of  the  money,  drew  the  mort- 
gage, and  therein  was  a  covenant  that  the  estate  was  free  from  incum- 
brances, making  no  mention  of  the  statute.  Treludro  being  supposed  to 
be  deficient,  the  question  was,  whether  Hill  should  be  admitted  to  take 
advantage  of  the  statute,  to  lessen  Ive's  security  upon  Gargoll. 

Per  Cur.  If  he  who  only  conceals  his  incumbrance  shall  be  postponed, 
much  more  ought  Mr.  Hill,  who  was  intrusted  as  counsel  by  the  mortga- 
gee, and  encouraged  the  lending  of  the  money,  and  drew  the  deed  with 
covenant  that  the  estate  was  free  from  incumbrances,  and  decreed  that 
Ive  should  be  satisfied  his  £2,000  out  of  Gargoll  before  Hill  should  charge 
the  same  with  his  statute. 

'  Vido  TTobhs  v.  Norton,  anto  1  vol.  ISfi;  Mocntta  v.  Murgatroyd,  1  P.  Wms. 
394,  and  cases  cited  in  note  ( 1 )   there. — Reporter's  Note. 


CHAP,  v.]  HUNING  V.  FERRERS 


HUNING  V.  FERRERS. 

In  the  Court  op  Chancery,  1712. 

[Gilhert's  Equity  Reports  85.'] 

The  Plaintiff  having  a  lease  of  certain  Mills  for  12  Years,  which  were 
near  expired,  the  Lessor,  upon  his  Marriage,  makes  a  Settlement  of  those 
Mills  to  the  Use  of  himself  for  Life,  then  to  the  first  and  other  Sons  of 
that  Marriage  in  Tail  Male,  Remainder  to  his  own  right  Heirs;  after- 
wards the  Plaintiff  takes  a  new  Lease  of  these  Mills  from  the  Father 
for  30  Years,  and  lays  28001.  in  new  Building,  and  improving  them.  The 
Defendant  was  the  eldest  Son  of  the  Issue  Male  of  the  Lessor,  and  during 
the  Time  the  Plaintiff  was  making  the  Improvements,  went  to  his 
Father,  and  told  him,  he  had  not  Power  to  make  any  such  Lease ;  that 
after  his  Death,  the  Estate  would  be  his,  but  never  acquainted  the 
Plaintiff  with  that,  or  of  the  Settlement  made  on  his  Father's  Marriage; 
but  on  the  contrary,  writ  to  the  Plaintiff  to  take  Care  to  keep  one  of  his 
Mills  in  particular  in  Repair ;  then  the  Father  dies,  and  the  Son  recovers 
in  Ejectment  against  the  Lessee,  who  thereupon  brought  this  Bill  to 
be  quieted  in  the  Possession  of  the  Mills,  during  the  Residue  of  his 
Lease,  for  that  the  Defendant  was  fully  acquainted  with  the  Circum- 
stances of  this  Lease,  and  knew  his  Father  had  not  Power  to  make  it, 
and  yet  never  forbid  or  cautioned  the  Plaintiff'  from  going  on  with  the 
Repairs,  but  on  the  contrary,  stood  by,  and  encouraged  him  in  the  Pro- 
ceeding therein ;  and  so  the  Plaintiff  had  a  Decree  to  hold,  during  the 
Residue  of  his  Term;  for  though  the  Defendant  was  not  Privy  to  the 
making  of  this  Lease,  but  that  was  only  the  Fraud  of  the  Father,  yet  he 
being  to  have  the  Estate  after  his  Father's  Death,  and  taking  Notice 
thereof  to  his  Father,  and  that  he  had  not  such  Power  to  make  any  such 
Lease,  and  yet  suffering  the  Plaintiff  to  go  in  the  Repairs  thereof,  with  a 
Design  to  reap  the  whole  Benefit  thereof  when  his  Father  was  dead, 
was  such  a  Fraud  and  Practice  in  him,*  as  ought  to  be  discountenanced 
in  this  Court.  For  Qui  tacit  consentire  videtur;  and  Qui  potest  and  debet 
vetare  juhet.  And  it  was  decreed,  that  the  Plaintiff  should  enjoy,  during 
the  Residue  of  his  Lease.  See  2  Lev.  152.  Edlin  v.  Battaley  in 
Chancery." 

^  S.  C.  in  1  Eq.  Cas.  Abr.  356,  is  reported  as  Harming  v.  Ferrers. 

^  For  a  case  similarly  circumstanced  see  Wendell  r.  Van  Rensselaer,  1S15. 
1  Johns.  Cli.  344,  in  which  Chancellor  Kent  discussed  the  question  in  the  light 
of  reason  and  authority. 

See  the  admirable  case  of  Storrs  v.  Barker,  1822,  G  Johns.  Ch.  166,  in  which 
the  same  learned  Chancellor  held,  citing  the  authorities,  that  a  person  having 
the  legal  title,  who  acquiesces  in  the  sale  of  the  land  by  another  claiming 
or  having  color  of  title  to  it,  is  estopped  from  asserting  his  title  against  a 
purchaser;  especially  if  he  has  advised  and  encouraged  the  parties  to  such, 
sale  to  deal  with  each  other. 


55S  TEASDALE  v.   TEASDALE         [part  i. 


TEASDALE  v.  TEASDALE. 

In  Chancery,  before  Lord  Chancellor  King,  1726. 

\_Seleci  Cases  in  Chancery  59.] 

A  son  who  was  only  tenant  for  life,  tho'  by  the  father  looked  on  to 
be  tenant  in  fee,  makes  a  settlement  on  his  intended  wife  for  her  jointure, 
(in  which  was  a  covenant),  with  the  knowledge  and  consent  of  his 
father,  who  was  a  witness  to  the  deed;  he  saluted  and  wished  the  intended 
bride  joy.  The  marriage  was  had;  the  son  dies,  and  makes  his  wife 
executrix,  leaving  a  personal  estate  of  the  value  of  £3,000.  The  father, 
after  the  decease  of  the  son,  discovers  that  the  son  was  only  tenant  for 
life,  and  that  the  fee  was  in  himself;  on  which  title  he  had  verdict, 
and  judgment  at  law.  The  wife  of  the  son  brings  bill  to  be 
relieved. 

For  the  plaintiff  it  was  said,  that  a  multitude  of  cases  have  been  ad- 
judged, that  where  a  party  is  privy  to  the  transaction,  he  shall  take  no 
advantage  of  it;  for  it  is  a  fraud,  and  would  be  doing  an  innocent  person 
an  injury.  1  Vern.  136.  Hobbs  v.  Norton;  and  in  Lord  Macclesfield's 
time.  Watt  v.  Creswell,  a  purchase  relieved  against  a  mortgagee  who  ap- 
peared to  be  privy  to  the  purchase,  tho'  he  was  an  infant. 

Econtra  it  was  insisted,  that  this  case  was  very  different  from  the  cases 
cited;  for  there  they  appear  to  have  been  cognisant  of  their  titles,  and 
concealed  them,  but  here  he  did  not  know  of  his  title,  and  therefore  can- 
not be  said  to  conceal  it;  and  further  in  this  case  it  appears  that  the 
father  had  another  estate,  which  he  knew  he  had  in  fee,  for  the  settling 
of  which  he  had  an  adequate  consideration;  so  extremely  iDlain  he  would 
have  so  done  in  respect  of  this,  had  he  known  his  own  title. 
Lord  Chancellor : 

I  shall  make  no  difference,  whether  he  knew  of  his  title  or  not  at  that 
time,  considering  the  near  relation  of  father  and  son;  it  is  plain,  it  was 
thought  the  son  had  the  fee ;  and  had  it  been  known  it  was  in  the  father, 
it  would  have  been  insisted  on  that  he  should  have  joined,  else  the 
marriage  would  not  have  been  had;  as  he  knew  of  the  settlement,  he 
shall  not  take  advantage  against  it. 

Then  it  was  insisted,  that  she  should  be  obliged  to  have  recourse  to 
the  covenant  against  the  personal  estate;  and  that  it  would  be  very  hard 
to  make  a  person  suffer  for  ignorance  of  his  title,  when  she  may  have 
ample  satisfaction  against  the  personal  estate;  whereby  equal  justice  will 
be  done,  and  she  will  have  the  fruit  of  her  agreement. 

But  the  Chancellor  said  he  would  compleat  her  jointure,  for  that  was 
what  was  intended  to  be  had,  and  would  not  oblige  her  to  have  recourse 
to  the  covenant. 


CHAP,  v.]  BUKKOWES  v.  LOCK  559 

N.  B.  By  the  settlement  the  husband  was  made  tenant  for  life,  and 
the  wife  tenant  in  tail,  which  the  court  would  not  decree,  but  ordered  an 
usual  jointure  to  be  made  on  her;  viz.,  an  estate  for  life,  impeachable  of 
waste.* 


BUREOWES  V.  LOCK. 

In  Chancery,  1805. 

[10  Vesey  470.] 


Edward  Cartwright,  being  entitled  under  a  Will  to  the  ninth  part  of 
the  residue  of  the  testator's  personal  estate,  the  whole  of  which  had  been 
distributed,  except  an  outstanding  debt,  and  being  pressed  by  the  Plain- 
tiff for  a  debt  due  to  him  in  his  trade,  as  a  baker,  in  consideration  of 
1321.  executed  an  assignment  to  the  Plaintiff  of  his  share  of  what  re- 
mained due  on  accotmt  of  the  residue,  amounting  to  2881.  The  expence 
of  the  transaction,  amounting  to  101.,  was  also  paid  by  the  Plaintiff. 
Previously  to  this  assignment  the  Plaintiff  consulted  Lock,  the  trustee  of 
the  fund;  who  represented  Cartwright  as  being  entitled  to  the  full  sum 
of  2881.;  though  he  had  ten  years  before  created  an  incumbrance  to  the 
extent  of  a  tenth  part  of  the  fund  by  an  assignment  to  his  brother. 

Under  these  circumstances  the  bill  was  filed  against  Cartwright,  and 
Lock,  who  admitted  notice  of  the  prior  incumbrance,  when  he  made  the 
representation  to  the  Plaintiff;  alleging  as  an  excuse,  that  he  forgot  the 
circumstance. 

^In  Tongne's  Lessee  v.  Nutwell,  1861,  17  Md.  212,  230,  the  court  said: 
"  It  is  insisted  that,  '  when  one  stands  by  and  sees  another  laying  out 
money  and  making  large  investments  upon  property,  to  which  he  or  she  has 
some  claim  or  title,  and  does  not  give  notice  of  it,  he  cannot  afterwards,  in 
equity  and  good  conscience,  set  up  such  claim  or  title.'  This  language  is 
quoted  from  Chief  Justice  Shaw,  in  the  case  of  Gray  v.  Bartlett,  20  Pick. 
Rep.  103,  where  he  further  says,  'We  think  this  is  a  very  just  and  well  settled 
principle  when  well  understood  and  properly  applied.  The  principle  insisted 
on  requires  some  qualifications,  and  can  only  be  held  to  apply  against  one 
who  claims  under  some  trust,  lien  or  other  right,  not  equally  open  and  ap- 
parent to  the  parties,  and  in  favor  of  one  who  would  be  deceived  or  misled  by 
such  want  of  notice.  But  where  the  act  of  one  is  an  encroachment  on  the 
soil  or  rights  of  another,  an  acknowledged  tort,  equally  well  known  or  eqiially 
open  to  the  notice  of  both  parties,  it  gives  no  right  until  it  has  continued  for 
such  length  of  time,  without  interruption,  as  to  found  the  presumption  of  a 
grant,  or  give  effect  to  the  limitation  of  the  right  of  action  for  the  disturbance, 
as  determined  by  the  common  law  or  by  statute.' 

"We  regard  this  a  soimd  illustration  of  an  esioppeHw  pais,  and  are  sustained 
in  the  adoption  of  it  by  this  court  in  the  case  of  Casey's  Lessee  v.  Inloes,  et  al., 
1  Gill.  502,  where  the^  case  in  20  Pickering  is  quoted  with  approbation." 


560  BUKEOWES  v.  LOCK  [part  i. 

The  Master  of  the  Rolls  [Sir  William  Grant/]  The  only  remaining 
question  is  that  with  respect  to  the  trustee.  It  is  objected  on  his  part, 
that  this  is  a  demand  for  damages :  also,  that  this  was  not  a  wilful  mis- 
representation. As  to  the  first  point  the  demand  is  properly  made  in 
equity;  and  the  Lord  Chancellor  in  Evans  v.  Bicknell,  Ante.  Vol.  6, 
174,  declared  that  the  case  of  Pasley  v.  Freeman,  3  Term  Rep.  51,  and 
all  others  of  that  class  were  more  fit  for  a  Court  of  Equity  than  a 
Court  of  Law :  but  his  Lordship  was  clearly  of  opinion,  that  at  least 
there  is  a  concurrent  jurisdiction;  and  says,  "It  has  occurred  to 
me,  that  that  case  upon  the  principles  of  many  decisions  in  this 
Court  might  have  been  maintained  here;  for  it  is  a  very  old 
head  of  equity;  that  if  a  representation  is  made  to  another  per- 
son, going  to  deal  in  a  matter  of  interest  upon  the  faith  of  that  repre- 
sentation, the  former  shall  make  that  representation  good,  if  he  knows  it 
to  be  false." 

In  this  case  the  Plaintiff  was  going  to  deal  with  Cartwright  upon 
a  matter  of  interest;  and  applied  to  the  person,  best  qualified  to  give 
information,  the  trustee,  to  know,  what  Cartwright  was  entitled  to;  who 
told  the  Plaintiff  expressly,  that  Cartwright  was  entitled  to  2881.;  and 
had  an  undoubted  right  to  make  an  assignment  to  that  extent;  knowing, 
that  he  had  not  a  right  to  make  such  assignment;  having  previously 
agreed  to  give  another  person  101.  per  cent,  out  of  the  fund.  There 
is  therefore  a  concurrence  of  all  the  circumstances,  which  the  Lord  Chan- 
cellor thinks  requisite  to  raise  the  equity.  The  excuse  alleged  by  the 
trustee  is,  that,  though  he  had  received  information  of  the  fact,  he  did 
not  at  that  time  recollect  it.  But  what  can  the  Plaintiff  do  to  make  out  a 
case  of  this  kind,  but  shew,  1st,  that  the  fact,  as  represented,  is  false; 
2dly,  that  the  person,  making  the  representation,  had  a  knowledge  of  a 
fact,  contrary  to  it,  Ante  Vol.  7,  182-183.  The  Plaintiff  cannot  dive  into 
the  secret  recesses  of  his  heart :  so  as  to  know,  whether  he  did  or  did  not 
recollect  the  fact;  and  it  is  no  excuse  to  say,  he  did  not  recollect  it.  At 
least  it  was  gross  negligence  to  take  upon  him  to  aver  positively  and  dis- 
tinctly, that  Cartwright  was  entitled  to  the  whole  fund,  without  giving 
himself  the  trouble  to  recollect,  whether  the  fact  was  so  or  not; 
without  thinking  upon  the  subject.  This  is  a  much  stronger  case  than 
Hobbs  V.  Norton,  1  Vern.  136,  and  the  negligence  infinitely  greater. 

Lock  therefore  must  be  answerable,  in  case  Cartwright  cannot  an- 
swer the  demand;  and  must  first  pay  over  to  the  Plaintiff  the  residue  of 
the  trust  fund,  deducting  the  101.  per  cent.;  then  Cartwright  must 
make  up  the  deficiency;  and,  if  he  fails,  Lock  must  make  it  good.  But 
un<lf'r  the  circumstance  of  undervalue  I  will  not  give  costs  against 
Cartwright. 

'  (,)ucsiif)ns  of  propor  cxccuiinn  ;in<l  ntlostniion  of  wills  omitted  as  is  also 
the  valuable  statonient  of  tins  truly  learned  and  correct  judge  as  to  inadequacy 
on  pp.  4745. 


CHAP,  v.]      MARVEL  V.  ORTLIP,  SWINDLE  and  others  561 


MARVEL  V.  ORTLIP,  SWINDLE  and  Others. 

In  the  Court  of  Chancery  of  Delaware,  before  Chancellor  Bates, 

186G. 

[3  Delaware  Chancery  9.] 

On  November  Yth,  1865,  Ortlip  agi-eed  to  sell  and  Swindle  to  buy 
certain  real  estate  belonging  to  the  former,  iipon  which  was  the  Washing- 
ton Hotel.  The  agreement  to  sell  was  in  writing  under  seal,  and  by  the 
terms  thereof  the  conveyance  and  possession  was  to  take  place  March 
25th,  1866. 

The  complainant  was  an  innkeeper  and  tenant  of  the  Washington 
Hotel  for  the  past  two  years.  On  or  about  November  7th  he  was  in- 
formed by  Ortlip  of  the  agreement  to  sell  and  assured  that  if  the  sale 
failed,  he  should  remain  as  tenant  at  rental  of  $500.  About  December 
25th  complainant  received  one  notice  from  Ortlip  to  quit  at  the  end 
of  his  term,  and  on  February  15th,  1866,  the  complainant  leased  the 
premises  from  the  equitable  owner  Swindle  for  one  year  beginning  March 
25th  for  the  rental  of  $500. 

The  contract  of  sale  was  not  executed  as  contemplated  by  the  parties, 
and  Ortlip  brought  forcible  entry  and  detainer  against  Marvel,  who 
thereupon  prayed  an  injunction  setting  forth  that  Ortlip  and  Swindle 
were  estopped  to  deny  lease ;  second,  complainant  should  not  be  com- 
pelled to  pay  rent  until  it  be  adjudged  who  was  entitled  thereto,  being 
induced  by  their  joint  acts,  and  the  legal  title  being  in  dispute  under  an 
existing  contract  executory  and  part  performer,  and  third  that  the  con- 
plainant  was  entitled  to  the  specific  performance  of  the  lease.' 

The  Chancellor  [Bates]  :  I  proceed  now  to  the  other  ground  of  equity 
relied  upon  in  the  bill.  It  is  this: — that  Ortlip,  both  by  acts  and 
declarations,  induced  Marvel  to  believe  that  Swindle  had  the  power  to 
lease  the  hotel  so  as  to  give  the  tenant  a  right  of  possession  after  the  25th 
of  March;  that  under  this  belief,  so  induced,  and  relying  upon  the  acts 
and  declarations  of  Ortlip,  Marvel  took  the  lease  and  paid  in  advance 
part  of  the  rent,  and  that  thereupon  Ortlip  is  equitably  estopped  from  im- 
peaching the  validity  of  the  lease  as  against  Marvel. 

It  was  upon  this  ground  of  equity  that  the  injunction  was  ordered. 
I  thought  then  and  still  thinli  that  the  bill  charges  facts  sufficient  to 
estop  Ortlip  from  disturbing  the  possession  of  Marvel  under  this  lease. 
It  charges  that  Ortlip  had  frequently  declared  "that  Swindle  had  a  per- 
fect right  to  rent,  sell  or  do  what  he  pleased  with  the  said  hotel 
property  in  Newark  and  that  he,  Ortlip,  had  the  same  rights  and  powers 
in  relation  to  the  farm,"  and  in  a  subsequent  part  of  the  bill  he  charges 

*  Shortened  statement  of  the  case  is  substituted  and  only  the  opinion  of  the 
learned  Chancellor  is  given  on  the  point  of  estoppel. 


562  MARVEL  v.  ORTLIP,  SWINDLE  and  others        [part  i. 

that,  being  induced  by  and  relying  upon  these  declarations  made  to 
himself  as  well  as  others,  as  also  by  certain  public  acts  and  dealings 
of  Ortlip  and  Swindle  with  the  proprietors,  which  were,  at  least,  in 
harmony  with  these  declarations  and  gave  them  force,  he  took  the 
lease  and  paid  his  money;  and  under  the  charges  of  the  bill  Marvel 
does  not  appear  to  have  been  then  cognizant  of  the  contract  or  its 
terms.  A  clearer  case  of  equitable  estoppel  than  that  here  charged  it  is 
difficult  to  put.  The  rule  is  this : — where  one  by  his  acts,  declarations  or 
silence,  where  it  is  his  duty  to  speak,  has  induced  another  person,  in 
reasonable  reliance  on  such  acts  or  declarations,  to  enter  into  a  transac- 
tion, he  shall  not,  to  the  prejudice  of  the  person  so  misled,  impeach 
the  transaction.  He  need  not  have  acted  fraudulently,  or  willfully  have 
misled  the  other  party.  The  object  of  the  rule  is  not  to  punish  for 
fraud  or  falsehood,  but  to  adjust  equitably  a  loss  between  two  parties 
one  of  whom  must  bear  it,  and  it  is  considered  that  he  should  bear  it 
who  has  caused  it.  This  is  a  most  beneficent  principle,  for  it  enforces 
good  faith  and  gives  security  to  that  trustfulness  which  must  enter 
much  into  business  transactions  and  it  applies  itself  not  to  any  special 
class  or  sort  of  cases,  but  to  all  dealings  between  man  and  man.  But 
it  must  be  observed  that  equity  applies  this  principle  of  estoppel 
cautiously  and  only  in  a  case  clear  upon  the  circumstances,  because 
in  doing  so  it  interferes  with  what  otherwise  is  to  the  party  an  admitted 
legal  remedy.  Hence,  it  is  required  that  the  matter  of  estoppel,  i.  e.,  the 
facts  out  of  which  it  arises,  be  clearly  established  in  evidence:  and  then 
the  facts  so  established  must  present  these  two  requisites,  viz : 

1.  That  the  party  claiming  the  estoppel  was  misled  and  induced  to 
enter  into  the  transaction  upon  the  faith  of  the  declaration,  act  or  silence 
of  the  other,  or  upon  the  fact  or  relation  which  he  seeks  to  re- 
strain the  other  party  from  denying. 

2.  That  his  being  so  misled  was  not  through  his  own  negligence,  or 
want  of  attention  to  proper  means  of  information.  For  the  general 
maxim,  "Vigilantihus  non  dormientihus  leges  adjuvant,"  ought  specially 
to  apply  here,  since  the  interposition  of  equity  in  these  cases  is  extra- 

"  ordinary  and  restrictive  of  legal  rights,  and  will  not  be  extended  ta 
those  who  have  not  exercised  reasonable  diligence  to  protect  themselves. 

It  is  not  necessary  to  refer  to  cases,  to  show  the  rule  or  its  limitations. 
The  subject  is  a  familiar  one.  It  is  fully  treated  in  2  Smith's  Leading 
Cases,  400,  etc. 

Returning  now  to  the  case  before  us. 

Although,  upon  the  charges  of  the  bill,  a  ground  of  estoppel  is 
shewn,  T  find  it  sufficiently  denied  by  the  answer  and  not  sustained 
by  affidavits  against  the  answer  and  must  therefore  dissolve  the  in- 
junction. 

The  estoppel  is  charged  by  the  bill  to  arise  from  both  declarations 
of  Ortlip  and  the  acts  and  dealings  of  Ortlip  and  Swindle  together. 
What  the  acts  and  dealings  of  these  parties  were,  are  the  offers  for 


CHAP,  v.]      MAEVEL  V.  OETLIP,  SWINDLE  and  others  5G3 

sale  and  the  leasing  of  the  properties  with  the  attendant  circumstances. 
These  taken  in  connection  with  declarations  made  by  Ortlip  to  Marvel, 
such  as  are  charged,  would  have  weight  on  the  question  of  estoppel,  be- 
cause they  would  give  force  and  probability  to  the  declarations;  but  con- 
sidered by  themselves  without  any  declarations  on  the  part  of  Ortlip 
to  Marvel  and  considering  them  as  impressions  on  one  cognizant,  as 
Marvel  was,  of  the  contract,  they  are  not  sufficient  to  estop  Ortlip  from 
claiming  his  right,  as  the  legal  owner  to  the  possession  of  the  hotel. 
And  for  this  clear  reason ;  equity  in  applying  this  doctrine  interferes  with 
the  legal  remedy  of  the  party  and  with  what  but  for  the  estoppel,  is 
his  clear  legal  right.  It  is  a  serious  interposition.  To  warrant  it  the 
matter  of  estoppel  should  be  plainly  made  out,  the  facts  well  estab- 
lished and  their  effect  or  construction  conclusive,  at  least  not  doubt- 
ful. The  present  is  a  clear  case  for  the  necessity  of  this  caution.  The 
vendor  is  to  be  debarred  from  the  possession  of  his  property  before  he 
receives  the  consideration  for  it,  under  the  effect  of  a  lease,  which,  by  the 
omission  of  Swindle  to  give  notice  to  quit,  may  be  one  of  indefinite 
duration,  and  he  is  turned  over  to  his  remedy  against  Swindle,  a  species 
of  remedy  always  undesirable  and  under  the  circumstances  of  this  case 
very  embarrassing.  An  estoppel  working  such  effects  should  be  con- 
clusively established. 

Now  the  acts  and  dealings  of  Ortlip  and  Swindle  as  facts  are  estab- 
lished and  so  notorious  that  Marvel  must  have  been  cognizant  of  them, 
and  to  one  ignorant  of  the  contract  they  would  have  caused  the  im- 
pression of  ordinary  absolute  ownership.  But  to  one  cognizant  of  the 
contract  and  its  terms,  as  was  Marvel,  these  acts  were  inconclusive,  that 
is,  we  cannot  say  that  by  such  acts  alone  one,  cognizant  of  the  contract, 
was  reasonably  induced  to  believe  that  Ortlip  had  conferred  on  Swindle 
an  absolute  right  to  dispose  of  the  possession  after  the  25th  of  March. 
The  acts  were  as  naturally  referable  to  the  readiness  of  the  purchaser 
to  anticipate  and  treat  as  certain  the  execution  of  the  contract.  This 
has  already  been  fully  considered  in  another  connection.  One  cognizant 
of  the  contract,  and  about  to  deal  with  the  purchaser,  should  be 
reasonably  held  to  inquire  beyond  such  acts  as  these  for  the  authority  of 
the  purchaser  to  sell  or  lease  the  property  absolutely,  and  the  omission 
to  do  so  would  deprive  him  of  an  equity  to  this  extraordinary  relief. 
I  have  assumed  as  a  decisive  feature,  in  considering  the  effect  of  these 
acts,  that  Marvel  knew  of  this  contract. 

It  appears  by  the  complainant's  affidavits  that  he  was  present  at  the 
signing  of  the  contract  between  Ortlip  and  Swindle,  and  must  have 
been  cognizant  of  its  terms.  Armstrong  states  that  this  contract  was 
made  in  a  room  at  the  hotel,  that  Marvel  came  from  the  room  for  the 
hotel  books  and  took  them  into  the  room,  that  Marvel,  Ortlip  and  Swindle 
returned  together  from  this  room,  where  the  contract  was  made,  into  the 
bar  room,  and  a  conversation  ensued  which  shewed  that  the  contract 
had  then  been  concluded. 


564  MARVEL  i;.  ORTLIP,  SWINDLE  and  others         [part  i. 

I  have  considered  the  acts  and  dealings  of  Ortlip  and  Swindle  with 
the  properties  and  their  effect  separately,  because,  although  in  the 
bill  they  are  charged  in  connection  with  declarations  of  Ortlip,  yet, 
as  the  case  is  now  presented,  they  stand  alone.  The  charge  of  the  bill 
that  there  were  declarations  of  Ortlip  inducing  Marvel  to  take  the  lease  is 
fully  denied  by  the  answer.  The  denial  I  have  already  quoted. 
The  affidavits  prove  no  such  declarations.  There  is  but  one 
transaction  shewn  which  has  been  relied  upon  as  having  the 
force  of  such  a  declaration.  It  is  the  conversation  between 
Swindle  and  Marvel,  in  Ortlip's  presence,  in  which  Swindle  promised 
Marvel  the  tenancy  if  he  shovdd  not  sell  the  property,  and  engaged 
Marvel  to  fill  the  ice  house,  which  Marvel  agreed  to  do  and  did.  Ortlip 
was  present  and  must  be  taken,  on  the  evidence,  to  have  heard  it,  but 
said  nothing.  Now  it  is  true,  that  silence,  when  there  is  an  obligation 
to  deny  certain  facts  or  relations,  upon  the  faith  of  which  another 
party  is  about  to  act,  and  the  omission  to  deny  which  must  be  supposed 
to  have  influenced  the  party  to  act,  is  equivalent  to  an  affirmation  of  these 
facts  or  relations,  and  may  thus  w^ork  an  estoppel.  But  it  must 
appear  that  the  party  claiming  the  benefit  of  the  estoppel  did  act 
upon  the  faith  of  the  supposed  facts  or  relations,  that  the  party  to 
be  estopped  was  bound  to  interpose — that,  but  for  such  interposition, 
he  would  not  have  become  involved  in  the  transaction.  These 
are  tests  so  plainly  e(juitable  that  no  authority  for  them  need  be 
cited. 

They  will  be  found  imjjlied  if  not  always  expressed  in  all  general 
statements  of  the  doctrine.  Let  us  apijly  them  to  the  transaction  in 
question.  Did  Marvel  in  this  conversation  agree  at  all  to  become 
Swindle's  tenant,  so  that  he  could  have  been  held?  The  testimony  does 
J  lot  shew  on  this  occasion  more  than  a  proposal  by  Swindle,  not  a 
bargain.  What  Marvel  did  afterward  as  to  refilling  the  ice-house  in 
eTanuary  does  not  seem  material  to  the  effect  of  the  conversation  on 
the  7th  of  November,  and  Ortlip's  duty  then.  Again,  supposing  Marvel 
had  then  accepted  the  proposed  tenancy,  could  we  say  that,  being 
cognizant  of  the  contract  and  knowing  that  Swindle  was  but  a  pur- 
chaser under  an  unexecuted  contract,  he  did  not  accept  the  tenancy, 
as  Swindle  offered  it  in  mere  reliance  upon  the  certainty  of  the  contract 
being  executed  ?  Can  we  s;ippose  on  the  other  hand  from  anything  that 
occurred,  that  Marvel  believed  that  Swindle  could  put  him  in  possession 
oil  the  25th  of  March,  whether  he  got  the  title  from  Ortlip  or  not? 
And  if  lu!  (lid  so  believe,  was  it  not  his  own  mistake  as  to  the  legal 
rights  of  parties  under  the  contract?  Had  not  Ortlip,  if  he  heard  the  pro- 
posal, reason  to  believe  that  it  was  made  and  received  upon  the  assumed 
certainty  that  the  contract  would  be  executed?  There  being  no  reason 
then  to  doubt  this  certainty,  whence  arose  this  obligation  to  suggest  a 
doubt?  Had  Ortlip  any  reason  from  the  circumstances  to  imagine  that 
Marvel  supposed   Swindle  could   put    him   in  possession  on  the  25th  of 


CHAP,  v.]  LOW  V.  BOUVEEIE  5G5 

March,  without  the  execution  of  the  contract  of  purchase?  If  not, 
whence  this  obligation  to  interpose? 

I  have  found  it  impossible  to  answer  these  and  similar  questions,  so 
as  to  involve  Ortlip  in  any  breach  of  duty  by  his  silence  on  that  oc- 
casion, and  without  a  breach  of  duty,  silence  does  not  work  an  estoppel. 
Indeed  I  can  see  nothing  in  the  whole  transaction  but  the  natural  result 
of  the  confidence  all  must  be  supposed  to  have  felt  that  the  contract 
would  be  duly  executed  on  the  25th  of  March. 

It  only  remains  to  add  on  this  subject  that  it  does  not  appear  that 
Ortlip  was  present  when  Marvel  took  the  written  lease,  or  at  all  cogni- 
zant of  it  or  of  any  other  conversations  or  transactions  connected 
with  Marvel's  tenancy. 


LOW  V.  BOUVEEIE. 

In  the  Court  of  Appeal,  Chancery  Division,  1891. 

[Law  Reports,  3  Chancery  Division,  82.] 

Bouverie,  being  entitled  under  a  settlement  to  a  life  interest  in  a  trust 
fund,  applied  to  the  Plaintiff  for  a  loan  on  the  security  of  such  life  inter- 
est, at  the  same  time  referring  the  Plaintiff  to  the  Defendant,  one  of  the 
trustees  of  the  settlement,  for  information  as  to  his,  Bouverie's,  means 
and  position.  The  Plaintiff  thereupon  wrote  to  the  Defendant  inquir- 
ing what  the  trust  fund  consisted  of,  and  whether  Bouverie's  life  inter- 
est was  subject  to  any  incumbrances,  but  not  stating  that  Bouverie  had 
applied  for  an  advance.  The  Defendant  replied  that  the  life  interest  was 
subject  to  certain  incumbrances,  mentioning  them,  but  did  not  say  there 
were  no  others.  The  Plaintiff  then  made  an  advance  to  Bouverie  on 
the  security  of  a  mortgage  by  Bouverie  of  his  life  interest.  Subsequently 
the  Plaintiff  discovered  that  the  life  interest  was  subject  to  several  in- 
cumbrances prior  to  his  own,  besides  those  the  Defendant  had  men- 
tioned, but  the  existence  of  which,  as  was  admitted  by  the  Plaintiff,  the 
Defendant  had  forgotten  when  replying  to  the  Plaintiff's  inquiries, 
though  he  had  had  notice  of  them.  The  Plaintiff's  security  being  insuffi- 
cient, he  brought  an  action  against  the  Defendant  to  have  him  declared 
liable  for  the  amount  due  on  the  security,  alleging  that  the  advance 
to  Bouverie  was,  made  upon  the  faith  of  the  Defendant's  written  represen- 
tations. 

Erom  a  decision  of  North,  J.,  holding  the  defendant  liable,  an  appeal 
was  taken.' 

'  This  statement  of  the  case  is  taken  from  the  headnote,  and  the  opinion  of 
BowEN,  L.  J.,  is  omi^tted. 


5G0  LOW  V.  BOUVEKIE  [fart  i. 

LiNDLEY,  L.J.'  (after  stating  the  facts  and  reading  the  correspondence, 
continued)  : — 

This  appeal  raises  several  extremely  important  questions.  First,  is  it 
necessary  to  consider  what  are  the  duties  of  trustees  towards  persons 
about  to  deal  with  their  cestuis  que  trust,  and  who,  before  dealing  with 
them,  made  inquiries  of  their  trustees  as  to  any  assignments  or  incum- 
brances known  to  them. 

In  Browne  v.  Savage,  4  Drew.  635,  639,  Vice-Chancellor  Kindersley 
said  that  trustees  "must,  for  their  own  security,  give  correct  informa- 
tion, when  inquiry  is  made  of  them,  whether  they  have  had  notice  of  any 
prior  assignments  affecting  their  trust  property."  Mr.  Lewin,  in  his 
well-known  work  Lewin  on  Trusts,  8th  Ed.  p.  704,  refers  to  that  case  as 
an  authority  for  the  proposition  that  trustees  are  bound  to  answer  such 
inquiries.  But  when  this  opinion  is  examined  it  can  scarcely  be  sup- 
ported, and  if  such  a  doctrine  were  logically  carried  out  it  would  impose 
very  serious  duties  upon  trustees.  The  duty  of  a  trustee  is  properly 
to  preserve  the  trust  fund,  to  pay  the  income  and  the  corpus  to  those  who 
are  entitled  to  them  respectively,  and  to  give  all  his  cestuis  que  trust,  on 
demand,  information  with  respect  to  the  mode  in  which  the  trust  fund 
has  been  dealt  with,  and  where  it  is.  But  it  is  no  part  of  the  duty 
of  a  trustee  to  tell  his  cestui  que  trust  what  incumbrances  the  latter  has 
created,  nor  which  of  his  incumbrances  have  given  notice  of  their  re- 
spective charges.  It  is  no  part  of  the  duty  of  a  trustee  to  assist  his 
cestui  que  trust  in  selling  or  mortgaging  his  beneficial  interest  and  in 
squandering  or  anticipating  his  fortune;  and  it  is  clear  that  a  person  who 
proposes  to  buy  or  lend  money  on  it  has  no  greater  rights  than  the 
cestui  que  trust  himself.  There  is  no  trust  or  other  relation  between 
a  trustee  and  a  stranger  about  to  deal  with  a  cestui  que  trust,  and 
although  probably  such  a  person  in  making  inquiries  may  be  regarded 
as  authorized  by  the  cestui  que  trust  to  make  them,  this  view  of  the 

^In  speaking  of  Lord  Lindley's  retirement  from  the  bench,  after  thirty 
years  of  distinguished  service,  Sir  Frederick  Pollock  says: 

"  Lord  LiNDLEY  has  given  us  an  almost  unique  example  in  our  time  of  the 
highest  distinction  in  the  profession  being  attained  by  purely  professional 
merit  and  without  any  kind  of  aid  from  political  influence  or  claims  on  any 
party  in  the  State. 

"  We  are  sure  that  but  few  of  us  could  say  offhand  what  Lord  Lindley's 
political  opinions  are;  we  doubt  whether  he  has  ever  given  any  one  the  right 
to  speak  of  them  in  public.  Not  that  we  can  object  to  political  promotions 
when  they  happen,  as  in  the  case  of  at  least  one  of  Lord  Lindley^'s  colleagues, 
to  light  on  exactly  the  right  man.  Still,  Lord  Lindley's  way  is  the  most  ex- 
cellent from  a  lawyer's  point  of  view.  The  younger  generation  may  be  re- 
minded that  his  first  published  work  was  of  a  severely  theoretical  character. 
Traces  of  it  may  be  found  in  his  standard  treatises  on  Partnership  and  Com- 
panies. '  That  young  man  will  never  get  business'  was  probably  the  conunent, 
hiilf  a  century  ago,  of  any  rule-of-thumb  practitioner  who  cast  an  eye  on  the 
'Introduction  to  the  Study  of  Jurisprudence.'" — 22  Law  Quarterly  Review,  3. 


CHAP,  v.]  LOW  V.  BOUYERIE  567 

stranger's  position  will  not  give  him  a  right  to  information  which  the 
■cestui  que  trust  himself  is  not  entitled  to  demand.  The  trustee,  there- 
fore, is,  in  my  opinion,  under  no  obligation  to  answer  such  an  inquiry. 
He  can  refer  the  person  making  it  to  the  cestui  que  trust  himself. 

I  will  next  take  the  case  of  a  trustee  who  answers  the  inquiry. 
What  in  this  case  is  the  extent  of  his  obligation?  Is  he  bound  to  find  out 
the  facts — bound  to  make  inquiries  of  his  co-trustees,  or  of  the  solic- 
itor to  the  trust  ?  Or  is  his  obligation  limited  to  giving  such  information 
as  he  himself  can  give  without  inquiry  or  research?  I  am  not  aware 
of  any  principle  or  authority  which  imposes  upon  him  any  obligation 
to  do  more  than  to  give  an  honest  answer  to  the  inquiry — that  is  to  say, 
to  do  more  than  answer  to  the  best  of  his  actual  knowledge  and  belief. 
He  may,  no  doubt,  undertake  a  greater  responsibility ;  he  may  bind  him- 
self by  a  warranty,  or  he  may  so  express  himself  as  to  be  estopped  from 
afterwards  denying  the  truth  of  what  he  said ;  but  unless  he  does  one  or 
the  other,  I  do  not  know  on  what  principle  consistent  with  Derry  v. 
Peek,  14  App.  Cas,  337,  he  can,  if  he  answer  honestly,  expose  himself  to 
liability.  I  say,  "consistent  with  Derry  v.  Peek,"  because,  until  that 
case  was  decided,  it  was  generally  supposed  to  be  settled  in  Equity 
that  liability  was  incurred  by  a  person  who  carelessly,  although  hon- 
■estly,  made  a  false  representation  to  another  about  to  deal  in  a  matter 
of  business  upon  the  faith  of  such  representation.  Burrowes  v.  Lock, 
10  Ves.  470 ;  Slim  v.  Croucher,  1  D.  F.  &  J.  518,  525.  This  general  propo- 
sition is,  however,  quite  inconsistent  with  Derry  v.  Peek.  I  do  not,  how- 
ever, understand  Derry  v.  Peek  to  apply  where  there  is  a  legal  obligation 
on  the  part  of  the  defendant  towards  the  plaintiff  to  give  him  correct 
information.  If  such  an  obligation  exists,  an  action  for  damages  will, 
I  apprehend,  lie  for  its  non-performance,  even  in  the  absence  of  fraud. 
See  per  Lord  Denman  in  Barley  v.  Walford,  9  Q.  B.  197,  208.  It  is 
for  this  reason  that  I  have  examined  the  obligation  of  trustees  to  an- 
swer inquiries  made  by  persons  about  to  deal  with  their  cestuis  que 
trust.  There  is  no  equitable,  as  distinguished  from  legal,  obligation 
to  answer  such  inquiries,  and  if  a  trustee  gives  an  honest  answer  he 
discharges  the  only  obligation  which  he  is  under. 

Again,  Derry  v.  Peek,  14  App.  Cas.  337,  does  not  in  any  way  affect 
the  law  relating  to  warranties,  unless  it  be  by  negativing  the  notion  that 
promoters  who  issue  a  prospectus  impliedly  warrant  the  truth  of  the 
statements  contained  in  it.  Nor  does  Derry  v.  Peek  in  any  way  effect 
the  law  relating  to  estoppel  where  such  law  is  applicable.  But  estoppel 
is  not  a  cause  of  action — it  is  a  rule  of  evidence  which  precludes  a  per- 
son from  denying  the  truth  of  some  statement  previously  made  by  him- 
self. Lord  Herschell,  in  his  judgment  in  Derry  v.  Peek,  did  not  profess 
to  overrule  Burrowes  v.  Lock,  10  Ves.  470,  and  Slim  v.  Croucher,  1  D.  F. 
&  J.  518,  and  it  was  strenuously  contended  that  those  cases  were  still 
law%  and  that  they  governed  the  present  case.  It  becomes  necessary, 
therefore,  to  examine  those  cases  with  care. 


568  LOW  V.  BOUVERIE  [part  i. 

Burrowes  v.  Lock,  as  appears  from  the  Registrar's  book,  was  a  suit  by 
the  assignee  of  one  of  several  residuary  legatees  for  his  share  of  the 
residue  of  a  testator's  estate.  The  amount  of  the  residue  was  not  in  con- 
troversy, and  a  general  administration  decree  was  not  sought.  The  de- 
fendants to  the  suit  were  the  plaintiff's  assignor  and  the  trustee  of  his 
share  of  the  residue.  The  trustee  had  (as  appears  from  the  report  in 
Vesey)  informed  the  plaintiff  that  this  share  was  unincumbered,  where- 
as, in  fact,  it  was  not.  The  decree  was,  in  effect,  that  the  trustee 
should  pay  the  full  amount  of  the  share  to  the  plaintiff  without  deducting 
the  incumbrance.  The  trustee,  even  if  he  acted  honestly,  which  is,  per- 
haps, questionable,  was  clearly  estopped  from  denying  that  the  share 
was  unincumbered.  This  decision  was  in  1805,  more  than  thirty  years  be- 
fore Pickard  v.  Sears,  6  Ad.  &  E.  474,  and  at  a  time  when  the  doctrine 
of  estoppel  was  less  accurately  defined  than  it  has  since  become.  Re- 
garded as  a  decision  on  the  ground  of  estoppel,  Burrowes  v.  Lock  ap- 
pears to  me  not  only  to  have  been  quite  right,  but  to  remain  wholly 
"untouched  by  Derry  v.  Peek.  Lord  Blackburn  seems  to  have  thought 
that  the  representation  in  Burrowes  v.  Lock  was  scarcely  distinguishable 
from  a  warranty:  Brownlie  v.  Campbell,  5  App.  Cas.  953;  and  if  this  be 
the  proper  view  to  take  of  it,  Burrowes  v.  Lock,  10  Ves.  470,  can  stand  on 
that  ground,  although  I  confess  my  own  inability  to  sustain  it  on  the 
ground  of  warranty. 

Slim  V.  Croucher,  1  D.  E.  &  J.  518,  in  which  Burrowes  v.  Lock  was 
recognized  and  extended,  cannot,  in  my  opinion,  be  supported  on  the 
ground  of  estoppel.  Slim  v.  Croucher  was  a  suit  in  equity  to  recover 
money  advanced  on  a  lease  granted  by  the  defendant  to  the  bor- 
rower, and  which  the  defendant  had  told  the  plaintiff  would  be  granted. 
The  lease  proved  to  be  invalid.  Unless  the  defendant's  statement 
amounted  to  a  warranty  that  the  lease  when  granted  would  be  valid,  I 
do  not  myself  see  how  to  avoid  the  conclusion  that  Slim  v.  Croucher 
is  inconsistent  with,  and  therefore  overruled  by,  Derry  v.  Peek.  14  App. 
Cas.  337.  Lord  IIerschell,  in  his  judgment,  did  not  himself  examine 
these  cases,  but  intimated  that  the  two  might  stand  together  upon  the 
grounds  explained  by  Lord  Selborne  in  Brownlie  v.  Campbell,  5  App. 
Cas.  936.  I  am  not,  however,  myself  able  to  reconcile  those  grounds 
with  the  decision  in  Derry  v.  Peek.  Slim  v.  Croucher  evidently  pro- 
ceeded upon  the  notion,  sanctioned  by  the  high  authority  of  Lord  Camp- 
bell, that  in  that  case  an  action  for  damages  might  have  been  main- 
tained at  law  upon  the  defendant's  representation,  and  that  in  such  a  case 
the  Court  of  Chancery  had  a  concurrent  jurisdiction  with  the  Courts 
of  Common  Law.  There  would  be  no  such  jurisdiction  in  the  case  of  a 
warranty.  Slim  v.  Croucher  was  not  decided,  nor  did  Lord  Selborne  ap- 
prove it,  on  any  such  ground. 

The  only  conclusion  T  can  arrive  at  is,  that  wliile  Burrowes  v.  Lock  can 
be  siir»port('d  and  taken  as  a  guide  on  the  ground  of  estoppel  or  possibly 
fraud,  Slim  v.  Croucher  cannot  any  longer  be  regarded  as  having  been 


CHAP,  v.]  LOW  V.  BOUVERIE  569 

rightly  decided,  fraud  having  been  negatived.  As  pointed  out  by  Lord 
Blackburn  in  Browulie  v.  Cani])bell,  5  App.  Cas.  95.3,  the  line  between 
fraud  and  warranty  is  often  very  narrow,  and  the  same  observation 
is  true  of  the  line  between  warranty  and  estoppel.  Narrow,  however,  as 
the  line  often  is,  the  three  words  denote  fundamentally  different  legal 
conceptions  which  must  not  be  confounded. 

Reverting  now  to  the  grounds  of  liability  on  which  this  action  may 
be  supported,  it  is  obvious  that  as  regards  warranty,  the  Plaintiff 
and  the  Defendant  were  not  contracting  parties.  There  was  no  intention 
to  contract,  nor  was  there  any  consideration  which  is  essential  for  the 
purpose  of  treating  what  the  Defendant  said  as  a  promise  or  a  warranty. 
As  regards  estoppel,  if  the  Defendant  had  said  that  there  were  no  incum- 
brances on  Admiral  Bouveric's  life  interest  except  those  mentioned  by  the 
Defendant  in  his  letters,  the  case  would  be  clearly  one  of  estoppel;  it 
would  be  undistinguishable  from  Burrowes  v.  Lock,  10  Ves.  470;  and 
the  Plaintiff  w^ould  be  entitled  to  relief,  not  to  damages  for  a  mis- 
representation, but  to  an  order  on  the  Defendant  as  trustee  for  the 
Plaintiff  to  pay  to  him  the  Admiral's  life  interest  in  the  fund  in  ques- 
tion, subject  only  to  the  incumbrances  disclosed  by  the  Defendant. 
This  is  not  the  relief  sought  by  the  Plaintiff,  nor  is  it  the  relief  given  to 
him  by  the  Court  below,  but  it  is  relief  to  which  he  would  be  entitled 
on  the  ground  of  estoppel.  But  the  difficulty  of  affording  the  Plaintiff 
relief  on  this  ground  arises  from  the  ambiguity  of  the  Defendant's 
letters.  They  are  quite  consistent  with  the  view  that  the  incumbrances 
mentioned  by  the  Defendant  were  all  he  knew  of  or  remembered.  A 
statement,  however,  to  that  effect  would  not  estop  him  from  shew- 
ing that  there  were  others  which  he  did  not  know  of  or  did  not  remem- 
ber. But  then  it  is  said  that  he  ought  to  have  known  of  them  and  remem- 
bered them,  as  notice  of  them  had  been  given  to  him ;  and  it  is  admitted 
that  if  he  had  looked  into  the  deeds  and  documents  relating  to  the  trust, 
he  would  have  found  that  there  were  other  incumbrances  besides  those 
which  he  did  in  fact  know  of  and  did  accordingly  mention.  Knowl- 
edge and  means  of  knowledge  are  very  different  things;  and  if  a  person 
truly  says  he  only  knows  or  remembers  so  and  so,  is  it  right  to  treat 
him  as  saying  that  he  knows  more,  even  if  it  is  his  duty  to  inform 
himself  accurately  before  he  speaks  ?  I  do  not  think  that  so  to  hold  would 
be  consistent  with  Derry  v.  Peek,  14  App.  Cas.  337.  To  treat  him 
in  the  case  supposed  as  saying  more  than  he  did,  would  be  to  resus- 
citate the  doctrine  condemned  in  Derry  v.  Peek,  and  to  hold  him  liable 
in  damages  for  a  negligent  misrepresentation. 

But  then  it  is  said  that  the  Defendant's  language  was  such  as  to  be 
calculated  to  mislead,  and  as  in  fact  to  mislead,  the  Plaintiff's  solicitors, 
who  applied  to  the  Defendant  for  information;  and  reliance  is  placed  on 
the  judgment  of  Baron  Parke  in  Freeman  v.  Cooke,  2  Ex.  654,  and  of  the 
present  Master  of  the  Rolls  in  Carr  v.  London  and  North-Western  Rail- 
way Company,  Law  Rep.  10  C.  P.  307.    But  the  answer  to  this  argu- 


570  LOW  V.  BOUVEKIE  [part  i. 

ment  is,  that  the  Plaintiff  too  hastily  inferred  from  the  Defendant's  let- 
ters that  there  were  no  other  incumbrances  besides  those  which  he 
mentioned.  He  never  said  this  in  terms;  I  cannot  think  he  means  to 
be  so  understood;  and  although  the  Plaintiff's  solicitors  may  have  so  un- 
derstood him,  I  do  not  think  they  had  more  reason  to  be  satisfied 
with  his  last  letter  than  with  his  first,  which  they  saw  was  too  loosely 
expressed  to  justify  them  in  acting  upon  it.  It  must  be  remembered 
that  in  this  case  the  Defendant  was  not  the  only  trustee,  and  it  does  not 
appear  that  the  Plaintiff's  advisers  applied  to  the  other  trustee.  It  is 
often  said  that  notice  to  one  trustee  is  notice  to  all :  Browne  v.  Savage, 
4  Drew.  635;  but  this  is  one  of  those  misleading  generalities  against 
which  it  is  necessary  to  be  on  one's  guard.  An  incumbrancer  of  a  trust 
fund  who  first  gives  notice  to  any  of  its  trustees  obtains  priority  over 
any  prior  incumbrancer  who  has  given  no  notice  to  any  of  them;  but 
notice  to  one  does  not  affect  the  other  trustees  so  as  to  make  them 
liable  for  what  they  may  do  in  ignorance  of  the  notice  to  their  co-trustee. 
There  is  no  law  which  precludes  them  from  saying  they  do  not  know 
what  he  knows ;  and  notice  given  to  one  who  dies  or  retires  without 
communicating  it  to  his  co-trustee  cannot,  I  apprehend,  render  them 
liable  for  not  giving  effect  to  a  notice  of  which  they  know  absolutely 
nothing:  see  on  the  subject,  Phipps  v.  Lovegrove,  Law  Eep.  16  Eq.  80. 
The  doctrine  of  implied  notice  cannot  create  an  estoppel  in  such  a  case 
any  more  than  it  can  create  a  personal  liability. 

Fraud,  breach  of  duty,  warranty,  estoppel,  being  therefore  all  nega- 
tived in  the  present  case,  no  ground  remains  on  which  this  action  can 
be  supported. 

The  appeal,  therefore,  must  be  allowed,  with  costs  here  and  below. 

Kay,  L.J.  In  the  discussion  in  this  case,  the  question  was  raised 
whether  Courts  of  Equity  have  been  in  the  habit  of  exercising  a  more 
extensive  jurisdiction  than  Courts  of  Law  in  cases  of  innocent  mis- 
representation. 

The  Plaintiff,  being  about  to  deal  with  an  equitable  tenant  for  life 
under  a  settlement  by  lending  him  money  upon  the  security  of  his  life 
interest,  caused  inquiries  to  be  made  of  the  Defendant,  who  is  one 
of  the  trustees  of  that  settlement,  whether  the  life  estate  was  incum- 
bered. If  the  Defendant  had  given  a  positive  answer  that  it  was  not 
incumbered,  and  the  intending  lender,  relying  upon  that  assurance,  had 
proceeded  to  lend  money  upon  a  mortgage  of  the  life  interest,  and  had 
afterwards  taken  proceedings  against  the  trustee  to  realize  his  security, 
there  seems  to  be  no  doubt  that  the  trustee  could  not  defend  himself  by 
saying  that  the  life  estate  had  been  previously  assigned,  but  that  when 
he  made  the  statement  he  had  forgotten  that  fact.  Also,  where  there  is 
conscious  deceit,  there  is  no  doubt  Equity  would  give  relief. 

In  1699,  in  Draper  v.  Borlace,  2  Verii.  369,  one  who  had  encouraged  an- 
other to  lend  money  on  mortgage,  concealing  a  prior  charge  of  his  own, 
was  postponed. 


CHAP,  v.]  LOW  V.  BOUVERIE  571 

In  1801,  in  Evans  v.  Bicknell,  6  Ves.  174,  Lord  Eldon  said,  6  Ves.  183: 
"It  is  a  very  old  head  of  Equity,  that  if  a  representation  is  made  to  an- 
other person,  going  to  deal  in  a  matter  of  interest  upon  the  faith  of 
that  representation,  the  former  shall  make  that  representation  good,  if  he 
knows  it  to  be  false." 

I\jiowledge  of  the  falsehood,  of  course,  makes  the  misrepresentation 
fraudulent,  and  in  cases  of  fraud  Courts  of  Equity  have  always  exercised 
a  wide  jurisdiction. 

The  facts  in  Evans  v.  Bicknell  were  that  one  Stansell,  having  a  life 
interest  in  certain  real  estate  in  remainder  after  the  death  of  his  wife, 
with  a  possible  reversion  in  fee  in  default  of  children,  obtained  the 
title-deeds  from  Bicknell,  one  of  the  trustees,  and,  concealing  the  set- 
tlement, mortgaged  the  estate  in  fee  to  the  plaintiff,  who  filed  the  bill 
against  the  trustee,  alleging  that  he  had  delivered  the  deeds  to  Stansell 
for  the  purpose  of  enabling  him  to  make  the  mortgage.  Lord  Eldon  said. 
ihtd.  182 :  "The  question  then  is,  supposing  the  husband's  interest  in- 
sufficient to  satisfy  the  mortgage,  whether  there  is  a  personal  demand 
against  Bicknell  upon  the  circumstances  of  his  conduct;  and  whether, 
if  there  is,  it  can  be  enforced  in  a  Court  of  Equity."  Relief  was  refused 
because  the  evidence  of  fraud  was  not  sufficient. 

In  1805,  in  Burrowes  v.  Lock,  10  Ves.  470,  a  trustee  was  held  liable 
to  the  plaintiff  who  had  bought  the  interest  of  a  cestui  que  trust,  re- 
lying upon  the  statement  of  the  trustee  that  the  cestui  que  trust  was 
entitled  to  the  fund,  the  trustee  having  forgotten  that  he  had  received 
notice  of  a  first  incumbrance.  The  language  of  Sir  William  Grant 
seems  to  make  it  doubtful  whether  he  entirely  believed  that  the  trustee 
had  forgotten — if  he  had  not,  of  course,  his  statement  would  be  fraudu- 
lent. 

But  it  is  quite  plain  that  fraud  is  not  necessary  in  all  cases  as  a 
ground  for  this  relief. 

In  1682,  in  Hobbs  v.  Norton,  1  Vern.  136,  relief  was  given  against 
the  owner  of  land  who  answered  an  inquiry  as  to  an  annuity,  supposed 
to  be  charged  upon  the  land,  that  he  believed  it  was  so  charged,  and 
encouraged  the  applicant  to  proceed  in  his  purchase  of  the  annuity. 
The  landowner  was  compelled  to  pay  the  annuity,  though  he  had 
since  discovered  that  he  was  entitled  to  the  land  free  from  any  such 
charge. 

In  1690,  in  Hunsden  v.  Cheyney,  2  Vern.  149,  a  mother,  who  was 
entitled  to  a  term  of  years  in  land  which  was  limited  to  her  in  tail,  stood 
by  while  her  son  negotiated  a  marriage  upon  the  footing  that  he  was 
entitled  to  the  term  upon  her  death,  and  engaged  to  settle  such  reversion 
on  the  issue  of  the  marriage.  On  the  suit  of  a  child  of  that  mar- 
riage she  was  compelled  to  make  the  settlement  good,  though  it  was 
insisted  that  she  was  not  guilty  of  any  fraud  or  ill  practice,  but  was 
ignorant  that  as  tenant  in  tail  she  could  dispose  of  the  term. 

In  each  of  these,  cases  the  plaintiff  relied  either  upon  the  fraud  of 


572  LOW  V.  BOUVEKIE  [part  i. 

the  defendant  or  upon  his  being  estopped  from  defending  himself  by 
denying  the  truth  of  his  own  statement. 

In  Slim  V.  Croueher,  1  D.  F.  &  J.  518,  where  a  person,  being  asked 
to  lend  upon  the  security  of  a  lease  which  the  borrower  represented 
that  he  was  entitled  to  have  granted  to  him,  applied  to  the  lessor 
and  received  from  him  an  assurance  that  he  was  agreeable  to  grant 
a  peppercorn  lease  of  the  property  in  question  to  the  borrower.  In 
fact,  he  had  already  granted  the  lease  and  the  borrower  had  mort- 
gaged it;  but  the  lessor  had  forgotten  the  previous  grant.  The  money 
having  been  advanced  on  the  faith  of  this  statement,  the  Court  of  Ap- 
peal, consisting  of  Lord  Campbell,  L.C,  and  Knight  Bruce  and  Tur- 
ner, L.  JJ.,  directed  the  lessor  to  repay  the  money  advanced,  with  in- 
terest and  costs  of  suit,  recognising  in  distinct  terms  that  there  was  no 
moral  fraud  on  the  part  of  the  lessor. 

That  case  carries  the  doctrine  as  far  as  any  that  can  be  cited, 
because  at  that  time  Courts  of  Equity  were  not  accustomed  to  give 
relief  by  way  of  damages  in  cases  which  did  not  in-^olve  actual  fraud. 
Lord  Campbell  said,  however,  that  it  belonged  to  a  class  of  cases  over 
which  Courts  of  Law  and  Courts  of  Equity  had  a  common  jurisdiction; 
and  the  relief  was  granted  on  the  authority  of  the  dicta  of  Lord 
Eldon  in  Evans  ■;;.  Bicknell,  6  Ves.  174,  and  upon  the  ground  that  the 
plaintiff  was  to  be  placed  as  far  as  possible  in  the  position  he  was  in 
before  the  representation  was  made.  According  to  the  recent  decision 
in  the  House  of  Lords  in  Derry  v.  Peek,  14  App.  Cas.  337,  an  action 
of  deceit  could  not  have  been  maintained  under  such  circumstances, 
because  there  was  not  actual  fraud.  The  doctrine  of  estoppel  seems 
scarcely  applicable.  The  representation  relied  on  in  Slim  v.  Croueher, 
1  D.  F.  &  J.  518,  was  more  like  a  contract  or  promise  than  the  state- 
ment of  an  existing  fact.  The  lessor  said  he  was  agreeable  to  grant  the 
lease.  But  as  the  money  was  not  advanced  at  the  lessor's  request,  there 
seems  to  have  been  no  consideration  to  support  a  contract.  However, 
the  language  used  by  the  lessor  involved  a  representation  that  he  was  in  a 
position  to  grant  the  lease,  and  this  may  have  been  the  misrepresenta- 
tion relied  on.  If  the  mortgagee  could  sue  the  landlord  to  compel  him 
to  grant  the  lease  or,  in  the  alternative,  for  damages,  and  the  landlord 
were  estopped  from  denying  his  ability  to  make  the  grant,  he  might  be 
treated  as  contumaciously  refusing  to  do  so,  and  in  this  way  perhaps  the 
decision  might  be  justified.  But  this  would  be  an  action  for  specific  per- 
formance of  a  contract,  and  I  do  not  see  how  it  could  be  maintained. 
Lord  Justice  Turner  says  distinctly  that  enforcing  a  personal  demand 
against  the  Defendant  under  such  circumstances  is  an  old  jurisdiction 
of  the  Court  of  Equity,  and  refers  to  Lord  Eldon's  language  in  Evans  v. 
Bicknell,  G  Ves.  182,  which,  however,  as  I  have  pointed  out,  was  a  case 
of  fraud.  Lord  Campbell  evidently  felt  the  difficulty,  for  in  his  judg- 
ment he  seems  to  distinguish  the  case  from  an  action  for  damages, 
because  there  could  be  no  question  about  the  amount  to  be  recovered. 


CHAP,  v.]  LOW  V.  BOUVERIE  573 

In  Piggott  V.  Stratton,  1  D.  F.  &  J.  33,  a  vendor  induced  a  man  to 
buy  land  for  building  by  a  statement  that  he  was  lessee  of  the  adjoin- 
ing land,  and  could  not,  owing  to  the  terms  of  his  lease,  build  upon 
it  so  as  to  obstruct  the  sea- view  from  the  land  he  was  selling.  After 
the  plaintiff  had  built,  the  vendor  surrendered  his  lease  and  took  a  new 
one  not  containing  any  restriction  against  obstructing  the  view,  and  then 
commenced  to  build  so  as  to  obstruct  the  view  from  the  plaintiff's  houses. 
It  was  held  by  the  same  Court  that  decided  Slim  v.  Croueher,  1  D.  F. 
&  J.  518,  that  the  vendor  must  be  restrained  from  so  doing.  Lord  Camp- 
bell, C.J.,  sustaining  the  injunction  expressly  on  the  ground  of  estoppel. 
"I  apprehend,"  he  says,  ibid.  49,  "that  the  injunction  is  to  be  supported  on 
the  well-established  doctrine,  that  if  A.  deliberately  makes  an  asser- 
tion to  B.,  intending  it  to  be  acted  upon  by  B.,  and  it  is  acted  upon 
by  B.,  A.  is  estopped  from  saying  that  it  was  not  true.  If  it  turns 
out  to  be  false,  A.  is  answerable  for  the  damage  which  may  have 
accrued  to  B.  from  having  acted  upon  it,  and  B.  is  entitled,  in  respect  of 
anything  done  in  the  belief  that  it  was  true,  to  olDJect  to  any  denial  of  its 
truth  by  A.  This  doctrine  is  to  be  found  in  Pickard  v.  Sears,  6  Ad. 
&  E.  469,  and  a  series  of  subsequent  decisions." 

Lord  Ca]\ipbell's  language  in  both  these  cases,  but  more  especially  in 
the  former,  might  be  read  as  intimating  an  opinion  that  an  action 
at  law  would  lie  for  an  innocent  misrepresentation  of  fact  upon  which 
another  person  acted.  But  Piggot  v.  Stratton  was  an  obvious  case  of 
estoppel. 

It  has  been  recognised  since  Freeman  v.  Cooke,  2  Ex.  654,  that  a 
statement  made  by  a  man  with  the  intention  that  it  should  be  acted  upon, 
and  which  is  acted  upon  accordingly,  is  binding  upon  him,  so  that  he 
is  precluded  from  contesting  its  truth  although  it  was  not  fraudu- 
lently made,  and  this  has  been  followed  in  numerous  instances.  The 
doctrine  was  stated  by  Lord  Blackburn  in  the  House  of  Lords,  in  the 
well-known  case  of  Burkinshaw  v.  Nicolls,  3  App.  Cas.  1004,  1026,  in 
these  words :  "When  a  person  makes  to  another  the  representation 
*I  take  upon  myself  to  say  such  and  such  things  do  exist,  and  you  may 
act  upon  the  basis  that  they  do  exist,'  and  the  other  man  does  really  act 
upon  that  basis,  it  seems  to  me  it  is  of  the  very  essence  of  justice 
that,  between  those  two  parties,  their  rights  should  be  regulated,  not 
by  the  real  state  of  the  facts,  but  by  that  conventional  state  of  facts 
which  the  two  parties  agree  to  make  the  basis  of  their  action." 

Certificates  in  that  case  had  been  issued  by  a  joint  stock  company  for 
shares  which  the  certificates  stated  had  been  fully  paid  up,  and  the  com- 
pany were  held  to  be  estopped  from  denying  that  they  were  paid  up,  as 
against  a  purchaser  of  those  shares  for  value  without  notice.  The  same 
doctrine  was  applied  in  In  re  Bahia  and  San  Francisco  Railway  Com- 
pany, Law  Rep.  3  Q.  B.  584,  and  in  Hart  v.  Frontino  and  Bolivia  South 
American  Gold  Mining  Company,  ibid.  5  Ex.  Ill,  where  no  kind  of  fraud 
was  imputed  to  the  companies. 


574  LOW  V.  BOUVERIE  [part  i. 

The  result  of  the  authorities  seems  to  be  as  follows : — 

1.  There  has  been  from  ancient  time  a  jurisdiction  in  Courts  of  Equity 
in  certain  cases  to  enforce  a  personal  demand  against  one  who  made  an 
untrue  representation  upon  which  he  knew  that  the  person  to  whom  it 
was  made  intended  to  act,  if  such  person  did  act  upon  the  faith  of  it  and 
suffered  loss  by  so  acting. 

2.  This  was  readily  done  where  the  representation  was  fraudulently 
made,  in  which  case  an  action  of  deceit  would  lie  at  law. 

3.  Relief  will  also  be  given  at  Law  and  in  Equity,  even  though  the  rep- 
resentation was  innocently  made  without  fraud,  in  all  cases  where  the 
suit  will  be  effective  if  the  defendant  is  estopped  from  denying  the  truth 
of  his  representation. 

4.  Where  there  is  no  estoppel,  an  innocent  misrepresentation  will  not 
support  an  action  at  law  for  damages  occasioned  thereby. 

5.  Estoppel  is  effective  where  an  action  must  succeed  or  fail  if  the  De- 
fendant or  Plaintiff  is  prevented  from  disputing  a  particular  fact  alleged : 
for  example,  if  an  assign  of  A.  sues  A.'s  trustee  to  recover  the  fund 
assigned,  and  the  trustee  is  prevented  from  denying  its  existence  in  his 
hands;  or  at  law,  if  the  assign  of  a  debt  should  sue  the  alleged  debtor  and 
he  was  prevented  from  denying  that  the  debt  was  due.  Or,  in  the  con- 
verse case,  an  estoppel  may  be  a  defence;  as  if  a  joint  stock  company  were 
to  sue  a  shareholder  for  calls  and  they  were  estopped  from  denying  that 
the  shares  were  paid  up,  their  action  would  fail. 

It  is  obvious  that  this  rule  does  not  apply  to  an  action  for  deceit.  In 
such  an  action  the  Plaintiff  relies,  not  on  the  truth  of  the  statement,  but 
upon  its  falsehood ;  and  he  is  bound  to  prove,  not  only  that  the  representa- 
tion was  untrue,  but  also  that  it  was  made  fraudulently.  Derry  v.  Peek,. 
14  App.  Gas.  337,  very  well  illustrates  the  difference.  It  was  an  action 
by  a  person  who  had  been  induced  to  take  shares  in  a  joint  stock  company 
by  an  untrue  statement  in  a  prospectus.  The  action  was  not  against  the 
company,  but  against  the  directors  who  had  issued  the  prospectus.  The 
representation  was  not  fraudulently  made.  Preventing  the  defendants 
from  denying  the  truth  of  their  representation  would  not  enable  the 
Plaintiff  to  succeed  in  such  an  action ;  so  that  the  Plaintiff  could  not  rely 
on  estoppel.  That  could  only  be  if  the  defence  had  been  that  the  state- 
ment was  inaccurate,  and  the  Defendants  were  estopped  from  denying  the 
accuracy  of  their  own  statement.  The  Plaintiff's  case  was  not  that  the 
statement  must  be  treated  as  accurate :  on  that  supposition  he  could  not 
have  had  any  relief  against  the  Defendants.  The  Plaintiff  sued  the 
Defendants  upon  the  ground  that  the  statement  was  false,  and  false  to 
their  knowledge — that  is,  fraudulent;  and  the  defence  that  prevailed  was 
that,  if  it  was  inaccurate,  it  was  not  fraudulent. 

6.  I  am  not  satisfied  that  relief  in  the  nature  of  a  personal  demand 
against  the  defendant  has  been  given  in  Equity  in  cases  which  did  not 
involve  fraud  or  to  which  this  doctrine  of  estoppel  would  not  apply.  Slim 
V.  Croucher,  1  D.  F.  &  J.  518,  is  the  only  instance  I  know  of;  and,  as 


CHAP,  v.]  LOW  V.  BOUVERIE  575 

Lord  Campbell  said  that  there  might  be  relief  at  law  in  that  case,  he 
probably  considered,  either  that  it  was  a  case  of  estoppel,  or  that  an  ac- 
tion of  deceit  would  lie — which  latter  view  is  not  considered  with  Derry 
V.  Peek,  14  App.  Cas.  337. 

In  the  present  case  the  doctrine  of  estoppel  woidd  enable  the  Plaintiff 
to  succeed  if  the  facts  warrant  the  application  of  it.  But  in  order  to 
create  an  estoppel,  the  statement  by  which  the  Defendant  is  held  bound 
must  be  clear  and  unambiguous.  This  is  an  ancient  rule  as  to 
estoppel  by  statements  in  a  deed,  as  appears  from  Rolle's  Abr. :  "  Es- 
toppel," (P)  pi.  1  and  7,  and  was  acted  on  by  Lord  Cairns  in  Heath  v. 
Crealock,  Law  Eep.  10  Ch.  22.  In  General  Finance,  Mortgage,  and  Dis- 
count Company  v.  Liberator  Permanent  Benefit  Building  Society,  10 
Ch.  D.  15;  27  W.  R  210,  Sir  G.  Jessel  followed  the  last  case,  and 
intimated  that,  in  his  opinion,  the  doctrine  ought  not  to  be  extended, 
there  being  no  reason  for  preferring  one  innocent  purchaser  to  another. 
That  certainty  of  statement  is  also  required  to  maintain  an  estoppel  upon 
a  statement  not  by  deed,  appears  from  Freeman  v.  Cooke,  2  Ex.  654, 
where  relief  was  refused  upon  the  ground  that  no  reasonable  man  would 
have  acted  on  the  faith  of  the  statements  made  if  they  were  taken 
altogether. 

Whether  this  suit  be  treated  as  in  Equity  or  at  Law,  the  essence  of  the 
plaintiff's  case  must  be  satisfied  of  this.  If  there  was  fraud,  and  the 
statement  was  intended  to  mislead,  its  ambiguity  would  not  be  a  defence ; 
but  where  no  fraud  is  alleged,  it  is  essential  to  shew  that  the  statement 
was  of  such  a  nature  that  it  would  have  misled  any  reasonable  man,  and 
that  the  Plaintiff  was  in  fact  misled  by  it. 

One  peculiarity  of  the  present  case  is  that  there  is  no  evidence.  The 
cause  is  tried  upon  admissions  by  both  sides.  Consequently  we  have 
no  statement  by  the  Plaintiff  or  by  his  professional  advisers,  who  were  the 
real  actors  in  the  negotiations,  as  to  what  meaning  they  attributed  to  the 
letters  on  which  they  now  rely  as  a  misrepresentation ;  nor  is  there  any 
statement  or  admission  as  to  the  extent  of  the  reliance  which  they  placed 
upon  the  alleged  misrepresentation.  The  Court  has  to  determine  what 
the  representation  amounted  to,  and  how  far  it  influenced  the  Plaintiff's 
conduct.  The  Plaintiff  did  not  personally  interfere  in  the  negotiations. 
His  solicitors  having  been  applied  to  by  Vice-Admiral  Bouverie,  the 
equitable  tenant  for  life,  for  a  loan  upon  the  security  of  his  life  interest, 
and  having,  as  appears  from  the  first  letter,  been  assured  by  him  that  he 
had  not  mortgaged  or  in  any  way  parted  with  such  life  interest,  wrote 
the  letters  which  have  already  been  read  by  Lord  Justice  Lindley. 

It  was  pointed  out  by  Lord  Justice  Bowen  in  the  argument,  that  the 
last  letter  but  one  demonstrated  that  the  writers,  the  Plaintiff's  solicitors, 
considered  they  had  not  obtained  at  that  time  a  satisfactory  answer  to  the 
question  stated  in  it.  The  reply  was  on  the  27th  of  February.  Without 
further  inquiry  the  Plaintiff  lent  money  to  Vice-Admiral  Bouverie  upon 
the  security  of  a  mo'rtgage  of  his  life  interest,  and  the  Plaintiff  admits 


576  SAVAGE  v.  FOSTER  [part  i. 

that  the  Defendant  did  not,  at  the  time  of  his  correspondence,  recollect 
that  he  had  received,  as  he  now  admits  was  the  fact,  notice  of,  or  that  he 
was  otherwise  aware  of,  the  existence  of  previous  mortgages  on  the 
life  estate.  It  appears  that  nothing  can  be  recovered  from  the  tenant 
for  life,  who  is  an  undischarged  bankrupt,  and  is  out  of  the  jurisdiction. 

Now,  what  is  the  true  inference  from  these  facts?  Did  this  corre- 
spondence amount  'to  a  statement  by  the  Defendant  that  there  were  no 
other  incumbrances  upon  the  life  estate  than  those  mentioned  in  his 
letters?  Or  was  the  true  meaning  that  those  were  all  that  he  knew  of 
or  remembered  at  the  time? 

It  is  said  that  we  should  adopt  the  former  view,  because  otherwise  it 
is  not  probable  that  the  money  would  have  been  advanced;  but  I  am  not 
convinced  of  that. 

The  Plaintiff's  solicitor  had  the  assurance  of  Vice- Admiral  Bouverie 
that  he  had  not  incumbered,  and  they  might  well  have  been  satisfied 
w'ith  the  statement  of  the  trustee  in  adition  that  he  did  not  know  of 
any  incumbrance.  Such  a  statement  made  in  good  faith,  if  accurate, 
would  not  render  the  Defendant  liable. 

I  am  strongly  disinclined,  in  a  case  which  is  free  from  any  suspicion  of 
fraud,  to  hold  a  person  in  the  position  of  this  Defendant  liable  upon  a 
statement  which  is  not  clear  and  unambiguous.  I  cannot  believe  that 
solicitors  receiving  such  letters  as  those  written  by  this  Defendant  could 
possibly  read  them  as  a  positive  assurance  that  there  were  no  other  in- 
cumbrances. I  think  that  the  only  fair  meaning  which  they  could  at- 
tribute to  the  statements  of  the  Defendant  was  that  the  charges  he  men- 
tioned were  all  that  he  was  aware  of  at  the  time  he  was  writing. 

For  this  reason,  I  think  that  the  appeal  should  be  allowed  and  the 
action  dismissed. 


SAVAGE  V.  FOSTER. 

In  Chancery,  before  Lord  Chancellor  Macclesfield,  1723. 

[9  Modern  35.] 

Margaret  Smith  being  seised  of  the  lands  in  question,  upon  her  mar- 
riage with  Peter  Flavill  settled  the  same  upon  trustees  and  their  heirs, 
to  the  use  of  said  Peter  Flavill  for  life,  then  upon  Margaret  his  in- 
tended wife  for  life ;  remainder,  after  the  death  of  the  said  Peter  and 
Margaret,  to  the  heirs  of  the  said  Peter,  on  the  body  of  the  said  Margaret 
to  be  l)egotten  ;  remainder  to  the  right  heirs  of  the  said  Margaret  for  ever. 
The  sai<l  Peter  and  Margaret  had  issue  only  one  daughter,  the  now 
defendant,  who  was  married  to  one  Foster. — Peter  Flavill  died,  and  then 
his  widow  married  one  Prown,  by  whom  she  had  issue  one  other  daughter. 


CHAP,  v.]  SAVAGE  V.  FOSTER  577 

and  no  more;  which  daughter  being  courted  by  one  Williams,  but  he 
refusing  to  marry  her  without  such  a  fortune,  which  Margaret  her 
mother  was  not  able  to  give  without  breaking  through  this  settle- 
ment, conveyed  the  said  lands  to  the  aforesaid  Williams,  &.c. ;  and  the 
defendant,  Mrs.  Foster,  and  her  husband,  who  knew  that  the  lands  were 
settled  on  her  in  tail  as  aforesaid,  solicited  her  mother  Margaret  Brown 
to  make  a  conveyance  in  favour  of  the  said  Williams,  and  were  assisting 
in  carrying  on  the  marriage  between  him  and  her  half-sister  Brown. 
Whereupon  the  said  Margaret  conveyed  these  lands  &c.,  to  the  use  of 
herself  for  life,  remainder  to  Williams  and  his  heirs;  then  the  marriage 
took  effect;  and  afterwards  Williams  sold  these  lands  to  the  plaintiff 
Savage,  who  entered  and  built  an  house  thereon. 

And  now  Mrs.  Foster,  who  was  the  issue  in  tail  by  virtue  of  the 
said  settlement,  and  endeavouring  to  set  it  up  against  the  title  of 
the  plaintiff,  who  was  the  purchaser,  he  exhibited  a  bill  against  her 
to  have  his  title  established  against  that  settlement;  for  that  she 
having  full  notice  of  the  purchase,  and  of  her  own  title,  she  gave 
no  notice  thereof  to  the  plaintiff,  and  therefore  ought  not  to  be  at 
liberty  now  to  impeach  it,  though  she  was  a  feme  covert,  but  that  she 
should  be  concluded  by  this  fact  as  well  as  if  she  was  an  infant. 

It  was  argued  for  the  defendant  Mrs.  Foster,  that  two  things  are 
necessary  to  bind  the  right  in  cases  of  this  nature :  the  one  is,  that 
the  party  must  know  his  own  title  to  the  lands;  and  the  other  is, 
that  he  must  be  instrumental  in  promoting  the  purchase  thereof  by  the 
vendee,  without  giving  him  notice  of  such  title;  for  it  would  be  of 
dangerous  consequence  if  the  bare  permission  of  him  to  proceed  in 
the  purchase  should  be  a  foundation  to  bind  his  right  in  this  court 
on  the  foot  of  fraud.  It  is  true,  the  defendant  knew  she  had  a  title 
under  this  settlement,  but  she  apprehended  she  was  not  to  take  till 
after  her  mother's  death;  she  knew  likewise  that  her  sister  was  about 
to  marry  Williams,  but  did  not  know  upon  what  terms;  but  if  she  had 
known  the  terms  of  that  marriage,  she  was  then  a  feme  covert,  and  her 
husband  ought  to  have  given  the  plaintiff  notice  of  her  title ;  therefore 
his  negligence  shall  not  prejudice  her.  who  had  done  nothing  to  lose 
her  inheritance  and  the  entire  benefit  of  this  settlement  for  ever. 

On  the  other  side  it  was  first  denied,  that  the  two  things  before- 
mentioned  by  the  plaintiff's  Counsel  are  necessary  to  have  relief  in 
cases  of  this  nature ;  the  one.  that  the  party  should  know  his  own  title ; 
and  the  other,  that  he  should  be  instrumental  in  carrying  on  the  pur- 
chase by  another,  without  giving  him  notice  of  such  title.  It  is  true,  he 
ought  to  know  his  own  title,  and  that  must  necessarily  be  intended  in 
this  case,  because  the  defendant  had  the  custody  of  this  deed  of  set- 
tlement; but  it  is  not  necessary  that  the  person  interested  should 
be  active  or  instrumental  in  carrying  on  the  agreement  in  order  to  a 
purchase;  for  if  the  party  knew  his  own  title,  there  can  be  no  danger 
that  his  right  should^  be  bound  by  the  purchase,  because  it  was  in  his 


578  SAVAGE  v.  FOSTER  [part  i. 

power  to  help  himself,  by  giving  the  purchaser  notice  of  such  right; 
and  thought  this  defendant  was  a  feme  covert,  yet  it  was  a  fraud  in 
her  not  to  give  the  purchaser  notice  of  her  right;  and  therefore  it  shall 
be  bound  for  ever;  and  the  rather,  because  the  defendant  solicited  her 
mother  to  make  this  conveyance  in  favour  of  Williams,  upon  the 
marriage  of  her  sister,  and  for  that  the  plaintiff  hath  entered  and 
built  on  the  lands. 

The  Court.  Where  there  is  a  parol  agreement  made  for  a  lease,  and 
the  lessee,  by  virtue  of  such  agreement,  enters  and  builds,  this  Court 
will  establish  it  on  the  foot  of  fraud  in  the  lessor,  notwithstanding  the 
Statute  of  Frauds,  &c. ;  because  contracts  executed  in  part  are  not  always 
within  the  statute,  though  executory  contracts  are. 

Now  this  bill  is  brought  to  be  relieved  against  a  fraud  in  the  defendant, 
who  would  avoid  the  plaintiff's  title  by  an  elder  settlement,  though 
she  was  privy  to,  and  assisting  in,  carrying  on  the  marriage  of  him 
under  whom  the  plaintiff  claims,  and  never  gave  any  notice  of  her  title 
to  the  purchaser. 

Now  when  anything  in  order  to  a  purchase  is  publicly  transacted,  and 
a  third  person  knowing  thereof,  and  of  his  own  right  to  the  lands  in- 
tended to  be  purchased,  and  doth  not  give  the  purchaser  notice  of  such 
right,  he  shall  never  afterwards  be  admitted  to  set  up  such  right  to 
avoid  the  purchase ;  for  it  was  an  apparent  fraud  in  him  not  to  give  notice 
of  his  title  to  the  intended  purchaser.  And  in  such  case  infancy  or  cove- 
ture  shall  be  no  excuse ;  for  though  the  law  prescribes  formal  conveyances 
and  assurances  for  the  sales  and  contracts  of  infants  and  feme  coverts, 
\\hich  every  person  who  contracts  with  them  is  presumed  to  know;  and 
if  they  do  not  take  such  conveyances  as  are  necessary,  they  are  to  be 
blamed  for  their  own  carelessness,  when  they  act  with  their  eyes 
open;  yet  when  their  right  is  secret,  and  not  known  to  the  purchaser, 
but  to  themselves,  or  to  such  others  who  will  not  give  the  purchaser 
notice  of  such  right,  so  that  there  is  no  laches  in  him,  this  Court  will 
relieve  against  that  right,  if  the  person  interested  will  not  give  the 
purchaser  notice  of  it,  knowing  he  is  about  to  make  the  purchase ;  neither 
is  it  necessary,  that  such  infant  or  feme  covert  should  be  active  in  pro- 
moting the  purchase,  if  it  appears,  that  they  were  so  privy  to  it  that 
it  could  not  be  done  without  their  knowledge. 

Therefore  it  was  decreed,  that  the  defendant  should  levy  a  fine  to 
the  plaintiff  to  extinguish  her  right  to  the  lands  in  this  settlement, 
and  that  the  plaintiff  should  have  a  perpetual  injunction  to  quiet  his 
possession;  and  that  if  the  defendant  shall  levy  the  fine  quietly,  and 
without  delay,  then  the  plaintiff  shall  have  no  costs,  otherwise  he  shall 
pay  costs.  And  the  case  of  Watts  v.  Cresswell,  9  Viner  Abr.  415,  was 
now  remembered,  where  tenant  for  life  borrowed  money,  and  his  son, 
who  was  the  next  in  remainder,  and  an  infant,  was  a  witness  to  the  deed 
of  mortgage;  this  Court  gave  relief  on  the  foot  of  fraud,  because  the 
infant  did  not  give  the  mortgagee  notice  of  his  title.     So  in  the  case  of 


CHAP,  v.]  ROSS  V.  SINGLETON  579 

one  Clere,  Clere  v.  Earl  of  Bedford,  13  Viner  Abr.  530,  who  was  an 
infant,  and  clerk  to  an  attorney,  and  had  a  mortgage  on  his  master's 
estate,  and  engrossed  a  subsequent  mortgage  thereof  to  another,  without 
giving  notice  that  the  estate  was  mortgaged  before  to  him ;  and  for  that 
reason  his  mortgage  was  postponed  on  the  foot  of  fraud.' 

Nota.  In  the  next  sessions  of  parliament,  the  defendant  petitioned 
to  appeal,  or  to  have  a  rehearing  at  the  peril  of  costs,  and  offered  to 
levy  a  fine  on  that  condition;  but  it  was  rejected  for  not  coming  in 
time. 


ROSS  V.  SINGLETON. 


In  the  Court  of  Cpancery  of  Delaware,  before  Chancellor  Ridgley, 

1821. 

[1  Delaware  Chancery,  149.] 

In  the  year  1785,  certain  real  estate,  situated  in  New  Castle  County, 
being  held  by  Joseph  Singleton  and  his  wife,  the  defendant,  in  her 
right.  Singleton's  interest  therein  was  sold  in  execution  of  a  judgment 
against  him,  and  purchased  by  Daniel  Thompson  and  Andrew  Mc- 
Intire.  Afterwards  the  title  under  the  Sheriff's  sale  came  to  Thompson 
solely.  Joseph  Singleton,  about  the  year  1791,  enlisted  as  a  soldier 
in  the  troops  commanded  by  General  St.  Clair,  and  was  in  the  battle 
fought  by  General  St.  Clair  with  the  Indians  on  the  4th  of  November, 
1791.  The  rumor  of  his  death  gained  circulation  and  general  credit  with 
his  family  and  in  the  neighborhood.  The  defendant,  his  wife,  soon 
afterward  applied  to  the  complainant  to  purchase  the  land  from  her, 
and  assured  him  that  she  had  made  the  most  particular  inquiries  after 
Singleton  and  had  obtained  such  information  as  fully  convinced  her 
that  he  had  been  killed  in  the  battle  with  the  Indians.  The  com- 
plainant at  that  time  declined  the  purchase;  but  upon  her  renewing  the 
application  afterwards,  with  an  offer  to  sell  the  land  at  fifty  shillings 
per  acre,  he  agreed  to  purchase,  confiding  in  her  assurance  that  she 
had  reason  to  believe  that  Singleton,  her  husband,  was  dead.  A  con- 
tract in  writing  was  drawn  and  signed,  dated  1st  of  December,  1794, 
whereby  the  defendant  agreed  to  sell  and  the  complainant  to  buy  the 
land,  being  sixty-one  acres  and  eighty  perches,  at  fifty  shillings  per 
acre,  amounting  to  £153.15;  of  which  £56.05  was  to  be  paid  down,  and 

^  That  an  infant  who  is  privy  to  or  practices  a  fraud  shall  be  bound  in  the 
same  manner  as  if  he  had  been  adult,  see  Evroy  v.  Nicholas,  2  Eq.  Abr.  489; 
Becket  v.  Corley,  1  Brown's  C.  C.  353;  Harvey  v.  Astley,  3  Atk.  607; 
but  it  seems,  that  this  riile  is  confined  to  such  acts  as  are  voidable  only, 
Sanderson  v.  Marr,  1  H.  Bk  Rep.  75. — Reporter's  note. 


580  EOSS  V.  SINGLETON  [part  i. 

the  residue  when  a  good  title  should  be  made  and  the  possession  de- 
livered. A  memorandum,  appended  to  the  contract,  referred  more 
particularly  to  the  title  as  being  in  the  defendant  by  descent  from  her 
father,  and  that  Joseph  Singleton,  her  husband,  was  dead.  The  £56.05 
was  paid  to  the  defendant,  and  materially  aided  in  the  support  of  herself 
and  children.  The  complainant,  by  an  arrangement  with  Daniel  Thomp- 
son, the  purchaser  at  the  sheriff's  sale,  obtained  possession  of  the  land, 
and  has  since  made  repairs  and  been  at  considerable  expense.  After 
these  transactions  above  stated  the  defendant  removed  to  Philadelphia, 
and  the  complainant  being  on  a  visit  to  that  place  in  1800  she  insisted 
upon  the  performance  of  the  contract,  again  alleging  that  she  had 
received  information  warranting  the  belief  that  her  husband  had  been 
killed  in  the  battle  with  the  Indians.  He  had  not  in  fact  been  heard 
of  up  to  that  time,  which  was  more  than  seven  years  after  the 
battle.  Upon  her  solicitations  and  assurances,  and  under  the  advice  of 
Samuel  Cochran,  who  drew  the  contract  and  was  a  mutual  friend,  and 
also  of  Thomas  McKean,  Chief  Justice  of  Pennsylvania,  who  acted  as 
Mrs.  Singleton's  friend  in  the  business,  the  complainant  consented 
to  accept  a  deed  and  to  pay  the  residue  of  the  purchase  money,  all  which 
was  done  on  the  23d  of  April,  1800.  The  deed  set  forth,  in  connection 
with  the  statement  of  title,  Joseph   Singleton's  death. 

In  1818,  Joseph  Singleton  having  meanwhile  died,  the  defendant 
brought  an  ejectment  for  this  land  in  the  Supreme  Court  for  New 
Castle  County,  and  a  trial  was  had  at  the  April  Term,  1821.  The  Court, 
in  that  action,  charged  the  jury  that  any  such  contract  or  deed  made 
by  a  married  woman,  and  executed  as  the  contract  and  deed  in  question 
appeared  to  have  been,  was  void  in  law.  Consequently,  the  plaintiff 
recovered  a  verdict  and  judgment  in  the  ejectment.  Thereupon,  this 
bill  was  field,  praying  that  the  defendant  may  make  to  the  complainant 
a  good  and  sufficient  deed;  that  the  complainant  may  be  quieted  in  his 
possession  of  the  land;  and  for  an  injunction  to  restrain  further  pro- 
ceedings under  the  judgment  in  the  ejectment. 

The  Chancellor  [Ridgley].  The  general  question  here  is,  whether 
a  feme  covert,  after  she  becomes  sole,  may  be  compelled  to  make  good 
or  to  execute  a  contract,  which  was  void  in  its  origin  and  which  she 
could  not  enter  into. 

In  this  case,  no  fraud  can  be  imputed  to  either  of  the  parties.  The 
death  of  Joseph  Singleton  was  equally  unknown  to  both  of  them,  and 
it  appears  by  Mr.  (Jochran's  testimony,  which  is  annexed  to  the  bill,  and 
makes  ])art  of  it,  that  on  the  1st  of  December,  1794,  when  the  articles  of 
agreement  were  executed,  the  defendant  only  expressed  her  belief,  of 
his  death,  and  said  she  thought  he  must  he  dead  although  she  had  no 
evidence  of  it.  Afterwards,  when  the  deed  was  executed,  in  April,  1800, 
the  length  of  time  between  the  supposed  death  and  that  period,  alone 
seemed  to  confirm  the  parties  in  the  opinion  of  his  death.  There  was  no 
imposition  practiced  on  Mr.  Iloss,  and  no  fact  was  concealed  from  him 


CHAP,  v.]  BOSS  V.  SINGLETON  581 

wliich  she  ought  or  could  communicate  to  him.  The  purchase  of  the 
land  was  a  hazard,  a  risk  incurred  by  Mr.  Ross  voluntarily,  and  without 
any  deception.  Indeed,  considering  the  notoriety  of  the  transaction  and 
the  persons  consulted,  it  is  not  to  be  believed  that  Mr.  Ross  was  led  into 
an  error  by  any  act,  or  concealment,  or  false  suggestion.  I  am  satisfied 
from  the  disposition  of  Mr.  Cochran,  that  there  was  no  fraud  in  the  case 
at  the  time  of  the  execution  of  the  articles  of  agreement  and  deed,  nor  at 
any  other  time.  Neither  can  I  find  in  the  whole  affair  any  like  accident 
or  mistake.  Ignorance  is  not  mistake;  neither  is  error  in  judgment  a 
ground  of  relief.  The  parties  blindly  entered  into  a  negotiation  about 
the  purchase  of  the  land;  and  after  more  than  five  years,  Mr.  Ross  took 
a  deed  and  paid  the  purchase  money,  without  a  knowledge  of  the  death 
of  Singleton,  the  husband  of  the  grantor,  upon  whose  death  the  legality 
of  the  contract  depended.  To  relieve  in  this  case  would  be  to  relieve 
against  the  imprudence  of  Mr.  Ross.  He  did  not  know  that  Sarah  Single- 
ton was  a  feme  sole.  He  knew  that  if  her  husband  was  alive  she  could 
not  convey  or  grant  the  land;  and  knowing  that  although  the  woman 
expressed  her  belief  of  his  death  she  had  no  evidence  of  it,  he  ventured 
on  the  purchase.  It  was  altogether  a  calculation  of  chances,  and  he 
trusted  to  the  chance.  The  probability,  indeed,  was  that  the  man  was 
dead;  but  it  was  only  a  probability.  In  short,  his  eyes  were  open,  and 
he  must  abide  by  the  event. 

But  it  is  alleged  in  the  bill  that  this  woman  executed  the  deed,  received 
the  purchase  money,  and  enjoyed  great  benefits  from  it;  also,  that  the 
complainant  expended  considerable  sums  in  repairs.  All  this,  in  the 
present  stage  of  the  proceeding,  we  must  take  to  be  true ;  but  it  is  not 
sufficient  to  give  validity  to  a  transaction  that  is  absolutely  null.  A 
contract  made  by  a  married  woman,  without  the  consent  of  her  husband, 
is  void;  and  a  court  of  chancery  cannot  give  validity  to  a  contract  void 
in  law.  The  case  of  Kenge  v.  Delavall,  1  Vern.  326,  has  some  re- 
semblance to  this.  Sir  Ralph  Delavall  and  his  lady,  by  reason  of  some 
discontents  in  the  family,  agreed  to  live  separately,  and  there  was  a 
separate  maintenance  settled  on  the  lady,  but  determinable  on  the  death 
of  either  of  them.  She  contracted  several  debts  during  the  separation. 
Her  husband  died.  A  bill  was  then  brought  to  subject  her  jointure  to 
the  payment  of  the  plaintiff's  debt.  The  Lord  Keeper  said  that  had  the 
separate  maintenance  continued,  there  might  be  some  reason  for  the 
creditors  to  follow  that,  and  make  it  liable  to  their  satisfaction ;  but  that 
being  determined  by  the  death  of  the  husband,  he  did  not  see  which  way 
the  jointure  could  be  charged  with  it.  The  reason  why  the  separate 
estate  might  be  charged  was  because,  according  to  Peacock  v.  Monk,  2 
Ves.  Sr.  190  and  Hulme  v.  Tenant  and  wife,  1  Bro.  Ch.  Rep.  16,  20, 
a  feme  covert,  acting  with  respect  to  her  separate  property  is  competent 
to  act  in  all  respects  as  if  she  were  a  feme  sole ;  but,  in  all  cases  of 
separate  property,  the  power  which  the  feme  covert  has  over  it  arises  from 
the  agreement  of  the  husband  before  or  after  marriage;  and  without  the 


582  BOSS  V.   SINGLETON  [part  i. 

agreement,  she  can  do  no  act  to  affect  it.    2  Ves.  Sr.  190;  1  Ves.  Sr.  1G3, 
229,  517. 

A  married  woman  can  enter  into  no  contract  that  will  bind  her  after 
her  coverture.  If  she  gave  a  bond  she  could  not  be  sued  upon  it.  She 
cannot  personally  bind  herself,  nor  her  executors  or  administrators;  4 
Bro.  Ch.  Eep.  483,  487,  Sockett  v.  Wray.  In  Smith,  and  Helen  his  wife, 
V.  French,  2  Atk.  243,  the  case  is  stronger  than  this,  and  the  principle 
is  clearly  laid  down  by  Lord  Hardwicke.  A  bill  was  brought  for  satis- 
faction of  a  breach  of  trust.  The  husband,  after  the  marriage,  conveyed 
his  wife's  fortune  to  the  wife's  mother,  as  her  trustee,  for  her  separate 
use.  The  trustee,  at  the  importunity  and  repeated  solicitation  of  the 
daughter,  the  cestui  que  trust  committed  a  breach  of  trust  by  disposing 
of  the  trust  money  for  the  benefit  of  the  husband,  at  his  instance  and 
request.  The  wife  promised  to  release;  and  after  she  became  a  widow 
confirmed  the  promise.  This  confirmation  alone  secured  the  trustee. 
The  promise  of  the  wife  during  coverture  could  not  bind  her ;  and, 
although  the  case  was  extremely  hard,  Lord  Hardwicke  would  have 
decided  against  the  trustee,  had  he  not  found  in  the  promise  of  the 
cestui  que  trust,  after  she  became  sole,  a  defence  sufficient  to  rebut  the 
plaintiff's  equity.  He  compared  it  to  the  case  of  an  infant  under  age, 
who,  contracting  a  debt  during  his  minority,  shows  his  consent  to  it 
by  confirming  it  after  he  comes  of  age ;  which  shall  effectually  bind  him, 
though  it  was  voidable  at  his  election.  So  here,  said  he,  a  promise  by  the 
wife  to  release  during  the  coverture,  it  is  certain,  could  not  bind  the 
wife ;  but  if,  after  the  death  of  her  husband,  she  repeats  the  promise, 
that  is  a  confirmation  of  it  and  is  good.  In  that  case  there  was  cited 
from  Ilobart  225,  a  case,  7  Ed.  4,  14,  in  which  the  wife  being  a  cestui 
que  use,  she  and  her  husband  sold  the  land.  She  received  the  money. 
They  both  required  the  feoffee  to  make  the  estate  to  the  vendee ;  yet  she, 
after  her  husband's  death,  in  a  court  of  equity,  was  relieved  against  the 
feoffee,  and  it  was  held  she  might  also  be  against  the  vendee  if  he 
were  privy  to  the  use. 

These  cases,  and  the  reason  of  them,  fully  establish  the  principle,  that 
a  married  woman  can  make  no  contracts  during  her  coverture  which 
shall  bind  her  after  she  becomes  sole,  unless  they  be  made  conformable  to 
certain  rules  established  to  operate  upon  and  bind  married  women.  And 
if  Sarah  Singleton  could  be  compelled  to  make  a  further  conveyance  to 
John  Koss  for  the  better  assurance  of  this  land;  or,  if  she  covild'be 
restrained  from  prosecuting  to  execution  her  judgment  at  law  recovered 
in  this  action  of  ejectment,  she  might  be  compelled,  directly  or  in- 
directly, to  give  effect  to  a  contract  void  both  at  law  and  in  eqiiity. 

Supposing  that  the  complainant  has  made  out  his  whole  case  in  his 
1)111,  with  the  dispositions  annexed,  I  see  no  ground  upon  which  I  can 
order  tho  writ  of  injunction;  and  although  I  have  been  obliged  to  form 
a  decided  opinion  upon  this  application  for  a  writ  of  injunction,  yet,  I 
.shall  be  extremely  willing  to  change  my  opinion,  if  the  plaintiff  shall  be 


CHAP,  v.]  CONNOLLY  v.  BEANSTLER  583 

able  to  satisfy  me  that  it  is  erroneous.  It  certainly  is  a  hard  case,  and  I 
regret  that  1  cannot  comply  with  the  prayer  in  the  bill  for  a  writ  of  in- 
junction. See  Bolton  v.  Williams,  2  Vesey  Jr.  138;  Jones  v.  Harris,  9 
Ves.  Jr.  486. 

This  case  afterwards  proceeded  to  a  final  hearing  before  the  Chancellor, 
at  the  April  Term,  1823,  on  bill,  answer,  exhibits  and  dispositions ;  and  a 
case  of  intentional  fraud  on  the  part  of  the  defendant  having  been  estab- 
lished by  the  proofs  to  the  satisfaction  of  the  Chancellor,  a  decree  was 
made,  perpetually  enjoining  the  defendant  from  prosecuting  to  execution 
her  judgment  in  the  action  of  ejectment  at  law.  This  decree  was  affirmed 
by  the  High  Court  of  Errors  and  Appeals,  at  the  June  term,  1824. 


CONNOLLY  V.  BEANSTLER. 

In  the  Court  of  Appeals  of  Kentucky,  1868. 

[3  Bush  702.] 

Judge  Robertson  delivered  the  opinion  of  the  Court : 

At  a  decretal  sale  of  a  house  and  lot  in  Smithland,  Kentucky,  for  the 
benefit  of  the  creditors  of  William  Gordon,  the  first  husband  of  the  ap- 
pellant, Mary  Ann  Connolly,  she,  for  the  purpose  of  facilitating  an 
advantageous  sale,  authorized  the  salesman  to  announce,  as  he  did,  to  the 
attending  crowd,  that  she  would  not  claim  dower  against  any  person  who 
should  become  the  purchaser.  After  that  announcement,  and  on  the 
faith  of  it,  the  property  was  well  sold,  and  finally  conveyed  to  the  appellee. 
Some  years  afterwards,  her  second  husband  and  herself  brought  this  suit 
in  equity  for  obtaining  dower ;  and  now  complain  of  the  dismission  of 
their  petition.     The  judgment  was  right. 

Although  her  declaration  to  the  bidders  did  not  legally  alienate  her 
dower,  yet  the  sale  being  made  on  the  faith  of  it,  she  is  equitably  estopped 
from  asserting  dower  against  the  purchaser;  for  the  disability  of  cover- 
ture could  not  exonerate  her  from  fraud. 

Wherefore,  the  judgment  is  affirmed.^ 

'  Under  the  recent  legislation  by  which  married  women  are  contractual 
beings,  there  is  no  reason  why  estoppel  should  not  be  invoked,  even  if  it  make 
the  Avoman  keep  faith  by  performing  her  contract.  Svich  would  seem  to  be 
the  general  law  applicable  to  the  statutory  wife.  For  example,  in  Bodine  v. 
Killeen,    1873,   53  N.  Y.   93,  the  Court  aptly  said: 

"Where  there  is  no  legal  capacity  to  contract,  a  party  will  not  be  estopped 
by  falsely  representing  that  he  has  capacity;  that  is,  the  incapacity  is  not 
removed  by  any  fraudulent  representation  of  the  actor.  The  law  will  not 
permit    one    legally    incapacitated    to    do    that    indirectly    which    he    or    she 


584  WATTS  v.  CRESWELL  [part  i. 

CLARE  V.  EARL  OF  BEDFORD. 

In  Chancery,  1G90. 
[13   Viner's  Ahridgment  536.] 

1.  A  prior  incumbrancer  witnesses  a  subsequent  mortgage,  and  told 
the  money  lent  at  his  master's  chambers,  being  his  clerk,  and  for  that 
alone  had  his  own  security  postponed.  Tr.  1690.  2  Vern.  151.  in  the 
case  of  Hunsden  v.  Cheyney,  cited  as  the  case  of  Clare  v.  Earl  of  Bed- 
ford.   Though  he  was  an  infant.  Tr.  9  Geo.  9  Mod.  38.  Savage  v. 

Foster,  cites  the  case  above,  but  adds  that  the  infant  was  clerk  to  an 
attorney,  and  engrossed  the  subsequent  mortgage. 


WATTS  V.  CRESWELL. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1714. 

[9   Viner's  Ahridgment  415.] 

Bill  to  have  a  discovery  of  the  defendant's  title  to  lands  in  B.  mort- 
gaged to  the  plaintiff,  and  likewise  to  have  an  account  of  the  rents  and 
profits  thereof,  &c.  The  case  was,  the  defendant's  father  having  occasion 
to  borrow  the  sum  of  £300  the  defendant  was  employed  by  his  father  to 
solicit  the  plaintiff  to  lend  that  sum  upon  a  mortgage  of  the  lands  in  B. 
which  the  father  made  affidavit  of  that  he  was  seised  in  fee,  and  that  the 
lands  were  free  from  incumbrances;  the  defendant  being  then  about  the 
age  of  20  years,  did  carry  a  feoffment  in  fee  and  fine  of  the  lands  of  the 
defendant's  father  to  the  counsel  of  the  plaintiff,  and  the  title  was  ap- 

cannot  do  directly.  That  is  especially  the  case  in  respect  to  infants  and  mar- 
ried women  laboring  under  common  law  disabilities,  the  law  imposing  the 
disqualification  from  motives  of  public  policy,  for  the  safety  of  those  regarded 
as  weak,  and  needing  protection.  Keen  v.  Coleman,  30  Penn.  299 ;  Lowell 
V.  Daniels,  2  Cray  161;  Goulding  v.  Davidson,  20  N.  Y.  004.  But  the  reason 
of  the  rule  closing  with  the  removal  of  the  incapacity,  the  rule  falls.  In 
the  management  and  control  of  her  separate  property,  when  acting  by  agents, 
a  feme  covert  is  answerable  for  her  agent  while  acting  within  the  scope  of 
the  agency,  although  the  fraud  may  be  without  her  knowledge  or  assent. 
Baum  V.  Mullen,  47  N.  Y.  .577." 

And  in  Smith  v.  Weeks,  1892,  0.5  Vt.  .550,  tlie  court  said:  "INIarried  women 
cannot  enjoy  tlie  enlarged  rights  of  action  and  of  property  given  by  our  statute 
and  remain  irn'sponsible  for  the  ordinary  results  of  their  conduct.  Incident 
to  the  powers  given  to  married  women  by  our  statute  is  the  capacity  to  be 


CHAP,  v.]  WATTS  V.  CEESWELL  585 

proved  of,  and  the  money  lent,  and  a  mortgage  made  to  the  plaintiff,  and 
the  defendant  was  a  witness  to  the  execution  of  the  mortgage-deed,  and 
likewise  to  the  payment  of  the  money.  The  defendant's  father,  after  the 
defendant  came  of  full  age,  took  £100  more  upon  the  same  mortgage, 
and  the  defendant  was  privy  to  that  transaction,  but  not  a  witness  to  the 
deed  or  payment  of  the  money.  The  defendant  by  his  answer  says,  that 
at  the  time  of  making  the  original  mortgage,  he  had  heard  the  lands  were 
settled  upon  him  after  the  death  of  his  father,  but  he  had  never  seen  the 
settlement.  The  defendant  after  the  death  of  his  father  refuses  to  pay 
the  mortgage,  and  claims  the  lands  as  remainder-man  in  tail  by  virtue 
of  a  settlement  by  his  grandfather  upon  the  marriage  of  his  father,  &c. 
Counsel  for  the  plaintiff  insisted  that  the  defendant,  though  an  infant  at 
the  time  of  making  the  mortgage,  was  liable  to  make  a  satisfaction,  be- 
cause he  was  party  to  the  fraud,  and  was  privy  to  the  whole  transaction, 
and  aiding  and  assisting  to  the  cheat,  and  that  though  an  infant  can- 
not bind  himself  by  contract  at  common  law,  yet  he  is  liable  to  actions 
of  tort,  as  trespass,  case  for  words,  &c.  So  is  he  liable  to  a  forfeiture  upon 
a  condition  in  fact,  or  implied,  &c.  So  in  equity  he  is  liable  to  make 
satisfaction  for  a  fraud,  &c. 

Per  CowPER,  C,  if  an  infant  having  a  remainder  upon  an  estate 
for  life  be  a  witness  to  a  mortgage  made  by  a  tenant  for  life,  I  do 
not  think  this  would  bind  the  infant,  because  if  he  was  made  a  party 
to  the  deed,  and  sealed  it,  yet  that  would  not  bind  him,  and  that 
is  a  much  stronger  case;  yet  I  am  of  opinion  in  this  case  the  de- 
fendant is  liable,  and  ought  to  make  satisfaction  to  the  mortgagee, 
because  at  the  time  of  this  transaction  he  was  very  near  being  of  full  age, 
and  solicited  the  plaintiff  to  lend  the  money,  and  produced  this  feoffment 
in  fee  to  his  father  (which  appears  now  to  be  forged),  and  was  principally 
concerned  all  along  in  the  fraud,  when  he  knew  at  the  same  time,  as  he 
admits  by  his  answer,  that  his  father  was  but  tenant  for  life,  with 
remainder  to  himself.  If  an  infant  is  old  and  cunning  enough  to  con- 
trive and  carry  on  a  fraud,  I  think  in  a  court  of  equity  he  ought  to  make 
satisfaction  for  it.    Decreed  accordingly. 

bound  and  to  be  estopped  by  their  conduct.  Sargeent  v.  French,  54  Vt.  385; 
Brown  v.  Thomson,  31  S.  C.  436,  17  Am.  St.  Rep.  40;  Lane  i?.  Schlemmer, 
114  Ind.  296,  5  Am.  St.  Rep.  621;  Knight  v.  Thayer  et  al.,  125  Mass.  25; 
Patterson  v.  Lawrence,  90  111.  174,  32  Am.  Rep.  22;  Rusk  v.  Fenton,  14 
Bush   490,  29  Am.   Rep.  413." 

If,  however,  the  wife  is  incapacited  to  do  a  specific  act,  e.  g.  to  bind  herself 
as  surety  for  her  husband,  the  old  rule  prevails,  Farmington  National  Bank 
i;.  Buzzell,   1880,  60  N.  H.   189. 

In  the  absence  of  statute,  however,  the  recent  tendency  was,  and  is,  to  hold 
the  wife  liable  for  the  misrepresentation.  For  a  collection  of  authorities,  see 
Pomeroy's  Equity  Jurisprudence,  3d  ed.,  §  814.  For  the  English  decision* 
to  the  same  effectj  see  note  to  same  section. 


586  EVROY  v.  NICHOLAS  [part  i. 


EVROY  V.  NICHOLAS. 

In  Chancery,  before  Lord  Chancellor  King,  1733. 

[2  Equity  Cases  Abridged  488.] 

A,  a  minor,  of  seventeen,  permitted  and  witnessed  for  the  sum  of  £157, 
his  guardian  to  sign  a  demise  to  the  plaintiff  of  the  infant's  lands  for 
twenty-one  years,  to  begin  six  months  before  the  infant's  majority,  at 
which  time  a  lease  in  being  would  determine.  Dissatisfied  with  the  bar- 
gain, the  infant  demised  the  land  to  one  C,  who  entered  upon  and  evicted 
the  plaintiff  and  took  a  crop  of  corn  which  the  plaintiff  had  sowed. 
Whereupon  the  plaintiff  filed  his  bill  against  the  erstwhile  infant  for  a 
new  lease  of  the  premises  for  twenty-one  years  or  the  return  of  the  £157 
and  against  C  to  have  satisfaction  for  the  crops.  It  was  urged  that  the 
lease  of  the  infant  was  in  point  of  law  void,  or  might  be  avoided  by  the 
infant  at  his  majority.' 

King,  Chancellor:  Infants  have  no  Privilege  to  cheat  Men.  This 
Lease  was  made  with  the  Consent  and  Approbation  of  A,  the  Infant, 
who  was  above  the  Age  of  Discretion,  and  knew  what  he  was  doing,  and 
it's  certain  his  consenting  to  the  Lease  was  the  only  Inducement  the 
Plaintiff  could  have  to  take  it  at  so  large  a  Fine,  being  he  was  not  to 
possess  the  Lands  'til  six  Months  before  Determination  of  the  Infancy, 
&c.,  and  therefore  whether  ever  the  Money  came  to  A's  Hands  or  not,  he 
ought  to  make  good  the  Lease  or  refund  the  Fine;  for  otherwise  the 
Plaintiff  and  all  other  Persons  would  be  defrauded  by  the  Collusion  of 
an  Infant  and  his  Guardian;  and  so  decreed,  that  on  A's  refusing  to 
make  a  Lease,  he  should  repay  the  Fine.  But  as  to  the  Crop,  his  Lordship 
would  not  meddle  about  that,  because  in  Point  of  Law  the  Lease  was 
absolutely  null.  N.  B.  York.  Attorney-General,  in  his  Argument  cited 
this  Case :  A,  Tenant  in  Tail,  wanting  to  mortgage  his  Estate,  B,  his  Son 
and  Heir,  being  an  Infant  of  about  sixteen  Years  old,  solicited  the  Loan 
of  the  Money,  and  a  Mortgage  was  made  without  acquainting  the  Mort- 
gajjf'o  of  the  Intail.  Upon  A's  Death,  B  set  up  the  Intail  against  the 
Mortgagee;  but  Equity  charged  the  Estate-tail  with  the  Mortgage,  be- 
cause of  the  Fraud  which  the  Infant  had  been  guilty  of.    Ibid.^ 

'  Tho  shitftiif'iit  of  ilie  case  is  sliortoned. 

"  For  a  faso  in  wliicli  tlio  court  of  chancery  forced  an  infant  to  make  good 
a  representation  thoiii,'h  it  enforced  a  contract,  see  Nelson  v.  Stocker,  1859, 
5  Jur.  n.  s.  202. 

For  cases  on  application  of  Estoppel  to  infants,  see  Pomeroy's  Equity 
Jurisprudence  {3d  ed.)  §  815. 


CHAP,  v.]  KOBINSON  V.  PATTERSON  587 

EOBINSON  V.  PATTERSON. 

In  the  Supreme  Court  op  Michigan,  1888. 

[71  Michigan  141.] 

On  a  bill  for  the  specific  performance  of  a  contract,  it  appeared  that 
one  Frederick  D.  Larke,  a  local  commissioner  on  a  State  road,  made  a 
contract,  dated  September  25,  1882,  in  the  name  of  Augusta  Larke,  his 
"wife,  with  one  James  B.  Patterson,  who  had  previously  made  a  contract 
with  the  State  for  the  construction  of  a  State  road;  that  said  Patterson 
located  and  reserved,  to  be  received  in  payment  for  the  work,  some  5,000 
acres  of  swamp  lands  of  the  State:  that  said  lands  were  located  by  said 
Patterson  from  information  and  minutes  furnished  to  him  by  said 
Augusta  Larke,  in  consideration  of  which  information  the  said  Patter- 
son agreed  to  convey  to  her,  her  heirs  and  assigns,  an  equal,  undivided 
interest  with  the  knowledge  of  Patterson,  who  promised  to  do  nothing  to 
of  Presque  Isle. 

It  further  appeared  that  Augusta  Larke,  on  December  19,  1882,  sold  and 
conveyed  to  the  complainant  her  interest  in  the  said  contract,  as  actually 
executed,  for  the  sum  of  $2,600;  that  complainant  purchased  said  in- 
terest with  the  knowledge  of  Patterson,  who  promised  to  do  nothing  to 
prejudice  complainant's  right  to  said  lands  or  to  cast  cloud  upon  the 
title;  that  Patterson  assured  the  complainant  that  the  contract  be- 
tween him  and  said  Larke  was  hona  fide  and  that  the  complainant,  be- 
lieving the  representations  of  the  said  Patterson  and  Larke,  paid  the 
•$2,600  in  the  utmost  good  faith. 

It  further  appeared  that  the  lands  in  question  were  reserved  and  located 
in  the  name  of  defendant  and  of  defendant's  father  in  disregard  of 
complainant's  contract,  and  that  one  Newell,  Commissioner  of  the 
State  Land  Office,  threatened  to  issue  the  patents  of  said  lands  to  the 
Pattersons. 

Thereupon  complainant  prayed  for  an  injunction  and  a  specific  per- 
formance of  the  contract  whereof  he  was  assignee.^ 

Sherwood,  C  J.  Such  is  the  substance  of  the  pleadings.  The  lands 
included  in  schedule  No.  3  are  not  involved  in  this  issue.  The  proofs 
were  taken  before  a  commissioner,  and  the  cause  was  heard  before  Judge 
Emerick,  who  made  a  decree  dismissing  complainant's  bill  as  against  the 
Pattersons  and  Newell,  and  that  they  recover  their  costs ;  holding  that  the 
material  facts  of  the  complainant's  bill  were  not  sustained  by  the  proofs, 
and  that  the  contract  set  up  in  the  bill,  as  between  these  parties,  in 
which  complainant  claims  an  interest,  was  against  public  policy,  and 
void.     In  these  views  of  the  learned  circuit  judge  we  fully  concur.     We 

'  The  statement  of  the  facts  is  much  abbreviated  and  unessentials  are 
omitted.  ^ 


588  KOBINSON  v.  PATTERSON  [part  i. 

shall  not  attempt  a  recapitulation  of  the  evidence.  We  will  say,  however, 
that  it  discloses  a  state  of  facts  which  can  never  be  looked  upon  with  any 
favor  in  a  court  of  equity.  While  the  case  shows  the  material  facts  set 
up  in  the  bill  are  not  sustained,  it  does  appear  from  the  testimony  that  the 
facts  stated  in  the  answers  are  in  the  main  true.  If  the  facts  in  regard 
to  tke  making  of  the  contract  are  not  such  as  claimed  by  the  Pattersons, 
and  if  it  was  not  subject  to  the  objection  that  it  is  against  public  policy, 
it  may  be  very  well  questioned  whether  it  presents  matters  within 
equitable   cognizance. 

But  we  pass  this,  and  will  only  say,  further,  that  the  claimed  contract 
contains  provisions  which  are  clearly  against  public  policy,  and  it  is 
therefore  void.  It  appears  from  the  complainant's  own  showing  that  Mr. 
Larke  was  the  local  commissioner  of  the  State,  and  charged  with  an  im- 
l^ortant  official  duty  in  approving  of  the  work  and  accepting  the  job.  This 
deprived  him  from  taking  any  interest  in  the  pay  for  the  work  which 
would  have  a  tendency  to  prejudice  the  rights  of  the  State  by  favoring 
the  contractor.  The  interest  he  took,  or  claims  to  have  taken,  could  not 
fail  to  have  this  tendency,  and  render  the  agreement  void.  The  taking 
of  the  interest  in  the  wife's  name  is  manifestly  only  a  part  of  the  scheme 
to  avoid  the  construction  the  law  places  upon  the  transaction,  and  rather 
strengthens,  than  otherwise,  the  conclusion  to  which  the  circuit  judge 
arrived ;  and  the  complainant  stands  in  no  better  position  than  would 
Larke  if  suit  had  been  brought  in  Mrs.  Larke's  name.  Contracts  in 
their  nature  calculated  to  influence  the  action  of  public  officers,  and  the 
eifect  of  which  is  to  influence  them  one  way  or  the  other,  are  against 
public  policy,  and  void.  Webbers  v.  Blunt,  19  Wend.  188;  Winter  v. 
Kinney,  1  N.  Y.  365;  Patton  v.  Nicholson,  3  Wheat.  204;  Mitchell  v. 
Smith,  4  Dall.  269;  Brown  v.  Tarkington,  3  Wall.  377;  Thomas  v. 
Caulkett,  57  Mich.  392,  24  N.  W.  Rep.  154;  Snyder  v.  Wiley,  33  Id. 
483 ;  Whitaker  v.  Cone,  2  Johns.  Cas.  58 ;  1  Add.  Cont.  387 ;  Richardson  v. 
Crandall,  48  N.  Y.  348 ;  Gray  v.  Hook,  4  Id.  449 ;  Bartle  v.  Nutt,  4  Pet. 
184;  O'Hara  v.  Carpenter,  23  Mich.  410;  Eberts  v.  Selover,  44  Id.  519, 
7  N.  W.  Rep.  225;  Weber  v.  Weber,  47  Id.  569,  11  N.  W.  Rep.  389; 
Hovey  v.  Blanchard,  13  N.  H.  145;  Ins.  Co.  v.  De  Wolf,  8  Pick.  56; 
Knowlton   V.    Spring  Co.,  57   N.   Y.   534. 

The  estoppel  claimed  by  complainant  in  this  case,  if  the  facts  were 
proved  as  claimed,  could  not  have  the  effect  sought  to  be  attributed  in 
this  case.  Public  policy  will  not  allow  the  doctrine  of  estoppel  to  come  in, 
and  aid  in  validating  an  unexecuted  contract  which  it  holds  to  be  void. 

The  decree  at  the  circuit  must  be  affirmed,  with  costs. 

CiiAMPLiN,  Mouse  and  Long,  JJ.  concurred.    Campbell,  J.  did  not  sit. 


CHAP,  v.]        MICHIGAN   V.  RAILROAD   COMPANY  589 


STATE  OF  MICHIGAN  v.  THE  FLINT  &  PERE  MARQUETTE 
RAILROAD  COMPANY  et  al. 

In  the  Supreme  Court  of  Michigan,  1891. 

[89  Michigan  481.] 

Grant,  J.^  The  bill  of  complaint  in  this  case,  which  is  on  the  informa- 
tion of  the  Attorney-General,  prays  for  an  injunction  to  restrain  the  de- 
fendants, first, — 

"  From  sales  of  any  of  the  lands  described  in  said  Exhibit  A,  or  from 
selling  any  timber  upon  said  lands,  or  committing  any  waste,  either 
directly  or  by  their  agents,  and  from  asserting  and  claiming  any  title 
to  said  lands  and  premises;  and  that  the  title  of  the  State  of  Michigan 
in  and  to  said  lands,  under  and  by  virtue  of  the  land  grant  of  the 
Congress  of  the  United  States,  made  September  28,  1850,  may  be 
decreed  and  declared  to  be  full,  complete,  and  absolute,  which  decree  may 
stand  and  operate  as  a  removal  of  all  clouds  to  said  title  by  reason  of 
the  claim  or  claims  made  by  the  said  defendants,  or  any  of  them,  or  other 
parties  interested  herein,  by  virtue  of  said  railroad  grant  or  trust- 
deed;  and  that  the  said  Flint  &  Pere  Marquette  Railroad  Company,  and 
its  trustees  and  land  commissioner,  aforesaid,  defendants  herein,  be 
required  by  the  decree  and  order  of  this  court  to  account  to  and  with  the 
State  of  Michigan,  complainant  herein,  for  any  and  all  timber  cut  upon 
said  premises  directly  by  said  defendants,  or  by  their  agents  or 
authority,  and  that  said  complainant  may  have  decree  for  any  amount 
due  it  upon  such  an  accounting." 

The  State  of  Michigan  claims  title  to  the  land  described  in  Exhibit  A 
under  and  by  virtue  of  the  grant  usually  known  as  the  "  Swamp-Land 
Grant,"  of  September  28,  1850,  by  the  Congress  of  the  United  States. 

The  defendants  claim  to  have  derived  their  title  through  an  act  of 
Congress  passed  on  or  about  June  3,  1856,  granting  to  the  Flint  &  Pere 
Marquette  Railway  Company  certain  lands  in  the  State  of  Michigan,  to 
aid  in  the  construction  of  a  railroad  in  said  State,  and  the  act  of  the 
Legislature  of  the  State  of  Michigan  passed  February  14,  1857,  con- 
ferring the  lands  upon  said  railway  company,  subject  to  the  act  of  Con- 
gress and  to  the  act  of  the  Legislature  referred  to. 

The  claims  of  the  respective  parties  will  appear  in  the  abstracts  of  the 
bill  and  answer,  taken  from  the  brief  of  the  counsel  for  the  defendants 
and  appellants,  and  found  at  the  end  of  the  opinion. 

Decree  was  entered  in  the  court  below  for  complainant,  declaring  the 
title  to  be  in  the  State ;  that  the  cloud  upon  the  title  to  the  lands,  arising 

^  A  portion  of  the  opinion  dealing  solely  with  facts  is  omitted. 


590  MICHIGAN   v.  RAILROAD  COMPANY  [part  i. 

from  the  claim  of  the  defendants,  be  removed ;  and  referring  the  cause  to 
a  commissioner  to  take  evidence  of  State  taxes  paid  by  the  defendants 
upon  the  lands,  and  the  value  of  the  timber  cut  therefrom. 

I  deem  it  necessary  to  discuss  and  determine  only  the  question  of 
estoppel,  raised  in  this  case;  for,  if  the  complainant  is  estoijped  to  now 
set  up  title  in  itself  to  the  lands  in  controversy,  the  other  questions  be- 
come unimportant. 

That  the  State,  as  well  as  individuals,  may  be  estopped  by  its  acts,  con- 
duct, silence,  and  acquiescence,  is  established  by  a  line  of  well- adjudicated 
cases. 

In  Massachusetts,  in  the  year  1825,  the  commonwealth  was  held 
estopped  from  setting  up  alienage  in  a  gi'antee  to  whom  it  had  conveyed 
land.  Com.  v.  Heirs  of  Andre,  3  Pick.  224.  In  that  case  the  state  had 
conveyed  the  land  by  deed  to  Andre.     The  court  held: 

"  This  deed  must  operate  as  a  rebutter,  as  it  would  if  an  individual 
were  the  grantor;  and  with  more  reason,  because  the  commonwealth  is 
not  liable  to  an  action.  The  commonwealth,  if  the  land  were  recovered, 
would  feel  itself  bound  to  repay  the  consideration  money,  with  interest. 
This  would  be  a  claim  which  could  not  be  resisted  without  degrading  the 
country." 

It  has  been  held  that  the  United  States  government  was  estopped  from 
disputing  certain  boundary  lines,  and  from  denying  that  certain  lands 
were  within  them.  U.  S.  v.  McLaughlin,  30  Fed.  Rep.  147.  The  court 
in  that  case  said : 

"  A  construction  of  the  law  and  understanding  of  the  facts,  acted 
upon  by  all  departments  of  the  government,  by  the  public,  and  even  by 
the  claimant  himself,  for  nearly  a  quarter  of  a  century,  should  not  now 
be  disturbed.  The  government  should  be  now  estopped  from  alleging  that 
it  (the  boundary  line)  is  or  should  be  located  elsewhere.  The  law  of 
estoppel,  in  a  proper  case,  applies  to  the  government." 

In  State  v.  Milk,  11  Fed.  Rep.  389,  it  is  said : 

"  Resolute  good  faith  should  characterize  the  conduct  of  States  in  their 
dealings  with  individuals,  and  there  is  no  reason,  in  morals  or  law,  that 
will  exempt  them  from  the  doctrine  of  estoppel."  See,  also,  authorities 
there  cited. 

Where  the  State  granted  its  land  as  a  part  of  a  wagon-road  grant,  which 
had  been  conveyed  to  the  State  under  the  swamp-land  act,  it  was  held 
estopped  to  deny  that  the  land  was  within  the  wagon-road  grant.  Cahn 
V.  Barnes,  5  Fed.  Rep.  326.  In  that  case  the  State  first  granted  the 
land  to  the  plaintiff  as  wagon-road  land,  and  subsequently  conveyed  it 
to  the  defendant  as  swamp  land. 

The  case  of  Hough  v.  Buchanan,  27  Fed.  Rep.  328,  arose  under  the 
swamp-land  act,  and  the  act  of  Congress  granting  certain  lands  to  the 
State  of  Iowa  to  aid  in  the  construction  of  railroads.  That  case  is  the 
exact  parallel  of  I  his,  so  far  as  the  indemnity  lands  are  concerned.  The 
complainants  obtained  their  title  from  the  railroad  act,  and  the  defendant 


CHAP,  v.]        MICHIGAN   V.   RAILROAD   COMPANY  591 

claimed  title  under  the  swamp-land  act.  After  reciting  the  facts,  the 
court  said : 

"  If,  under  these  circumstances,  it  should  now  be  held  that  the  State 
is  not  debarred  from  asserting  a  claim  to  these  lands  under  the  swamp- 
land act,  it  is  clear  that  a  fraud  would  thereby  be  perpetrated  upon  the 
company  and  its  grantees.  Should  it,  however,  be  held  that  it  was  open 
to  the  State,  or  its  grantees,  to  contest  the  validity  of  the  transfer  to  the 
railway  company,  such  contest  must  certainly  be  made  within  a  reasona- 
ble time.  The  county,  upon  its  organization  in  1859,  caused  these  lands 
to  be  listed  as  swamp  lands,  and  the  list  was  forwarded  through  the 
proper  channels  to  the  department  at  Washington.  The  Commissioner 
refused  to  certify  the  lands  under  the  swamp-land  act,  holding  as  a 
matter  of  law,  that  the  certification  made  thereof  in  1858  to  the  railway 
company  defeated  the  right  to  claim  them  under  the  swamp-land  act. 
It  does  not  appear  that  the  county  or  its  grantees  have  since  taken  any 
further  action  in  the  premises.  They  knew  that  the  lands  had  been 
certified  to  the  railway  company  in  1858 ;  that  the  Commissioner  of  the 
Land  Office  had  refused  to  certify  the  lands  under  the  swamp-land  act; 
that  the  railway  company  and  its  grantees  were  claiming  the  land,  and 
asserting  title  thereto  by  paying  taxes  assessed  thereon;  and  yet  for  25 
years  the  defendant  and  his  grantors  have  done  nothing  to  perfect  the 
evidence  of  their  title,  or  assert  any  right  to  the  land.  Certainly  their 
claim  must  be  regarded  as  stale,  and  not  entitled  to  favorable  considera- 
tions at  this  late  day." 

In  Pengra  v.  Munz,  29  Fed.  Rep.  830,  the  question  raised  was  similar 
to  that  in  Cahn  v.  Barnes,  supra,  and  the  same  rule  was  enunciated. 

In  U.  S.  V.  Railway  Co.,  37  Fed.  Rep.  68,  it  is  said : 

"  Parties  place  faith,  and  should  place  faith,  in  the  action  of  the 
government,  and  rely  upon  the  title  which  its  patent  conveys;  and  when, 
as  appears  in  this  case,  many  parties  have  purchased  in  perfect  reliance 
upon  the  title  of  the  patent,  and  many  years  have  passed  with  it  un- 
challenged, common  fairness  requires  that  the  title  thus  apparently  con- 
veyed should  be  sustained,  unless  it  be  very  clear  that  there  was  a  want 
of  authority  to  issue  it." 

In  Attorney-General  v.  Ruggles,  50  Mich.  124,  the  State  asked  for 
the  cancellation  of  certain  certificates  for  the  purchase  of  agricultural 
college  lands.  There,  as  here,  counsel  for  the  State  sought  to  make  a 
distinction  in  the  doctrine  of  estoppel  as  applied  to  the  State  and  indi- 
viduals.   But  this  Court,  speaking  through  Mr.  Justice  Morse,  said: 

"  I  see  no  reason  to  distinguish  this  case,  although  the  State  is  a  party, 
from  like  cases  between  individuals." 

This  brings  us  to  a  statement  of  the  facts  applicable  to  this  branch  of 
the  case.  By  the  act  of  Congress  of  June  3,  1856,  certain  alternate  sec- 
tions of  the  public  lands  were  granted  to  this  State  to  aid  in  the  con- 
struction of  certain  railroads.  The  State,  through  its  Legislature,  by 
Act  No.  126,  Laws  of  1857,  accepted  the  grant,  and  provided  the  ways 


592  MICHIGAN   i;.  EAILKOAD  COMPANY  [part  i. 

and  means  to  carry  out  the  trust  thereby  reposed  in  the  State.  Certain 
citizens  of  this  State,  and,  I  presume,  some  from  other  States,  organized 
the  Flint  &  Pere  Marquette  Railway  Company,  and,  under  the  authority 
conferred  upon  it  by  the  State,  immediately  commenced  and  prosecuted 
its  work  to  completion.  The  territory  through  which  the  road  was  con- 
structed was  practically  a  wilderness.  It  is  evident  that  it  could  not 
then  have  been  built  without  this  grant  of  lands.  As  an  additional 
inducement,  the  State  agreed  to  exempt  the  lands  from  taxation  for  a 
certain  number  of  years,  and  gave  the  railroad  the  right  of  way  over 
its  own  lands.  The  company  in  all  respects  complied  with  the  law,  and 
as  each  20  miles  of  its  road  was  completed  it  was  inspected  by  the  proper 
State  officials,  and  the  fact  certified  to  the  United  States  government. 
It  then  became  entitled  to  the  odd-numbered  sections,  corresponding  to 
each  20  miles  so  constructed. 

The  lands  in  controversy  in  this  suit,  in  all  about  16,000  acres,  were 
selected,  identified,  and  certified,  in  the  years  1859  and  1860,  as  having 
been  granted  to  the  State  under  the  railroad  act  of  June  3,  1856.  These 
certificates  were  sent  to  the  State  by  the  Department  of  the  Interior, 
and  filed  in  its  appropriate  department.  From  that  time  to  the  time 
of  filing  the  bill  in  this  cause,  in  December,  1887,  the  State  never  called 
in  question  the  right  of  the  railroad  company  to  these  lands.  Mean- 
while three-fourths  of  the  lands  have  been  sold  and  conveyed  by  the 
company  to  innocent  purchasers.  The  lands  have  been  improved,  build- 
ings erected,  and  taxes  paid,  both  State  and  municipal,  for  many  years. 
The  railroad's  claim  of  ownership  was  open  and  notorious. 

The  identification  of  these  lands,  and  their  certification  to  the  State, 
were  a  solemn  declaration  on  the  part  of  the  United  States  that  they 
came  to  the  State  under  the  railroad  grant,  and  not  under  the  swamp- 
land grant.  This  declaration  stood  for  28  years  without  challenge  from 
the  State,  and  with  the  evidence  thereof  on  file  in  its  own  department.  It 
knew  that  the  railroad  company  took  these  lands  under  the  railroad  act, 
and  was  selling  them  and  conveying  them  to  hundreds  of  its  citizens  for 
farms  and  other  purposes;  and  yet  it  slept  upon  its  rights  until  it  has 
reaped  the  benefits  of  the  construction  of  the  railroad,  and  the  available 
public  lands  have  in  all  probability  been  exhausted,  so  that  the  company 
cannot  now  receive  the  compensation  it  was  entitled  to  under  the  acts 
of  Congress  and  the  State,  and  until  these  lands  have  been  enhanced 
many  times  in  value,  at  the  expense  of  the  defendant  company  and  its 
grantees. 

No  question  is  raised  as  to  the  good  faith  on  the  part  of  the  railroad 
company  and  its  ofiicers,  nor  is  it  hinted  that  there  was  any  collusion 
between  the  officers  of  the  State  and  those  of  the  railroad  company. 

The  complainant,  therefore,  had  in  its  possession  the  evidences  of  its 
title.  It  is  urged  by  council  for  the  State  that  none  of  its  officers  or 
agents  examined  or  knew  of  the  contents  of  these  field-notes,  and  that  this 
constitutes  a  legal  excuse  for  not  applying  to  it  the  doctrine  of  estoppel. 


CHAP,  v.]  MICHIGAN  V.  KAILROAD  COMPANY  593 

The  State,  therefore,  seeks  to  apply  the  doctrine  of  estoppel  to  the  rail- 
road company  and  its  grantees,  but  denies  that  it  is  applicable  to  itself. 
What  reason  can  be  forced  for  such  a  position  ?  Let  us  apply  the  case 
to  individuals.  Should  A.,  assuming  to  own  large  tracts  of  land,  convey 
certain  of  them  to  B.,  in  trust  to  be  conveyed  to  C. ;  upon  the  payment  of 
a  valuable  consideration,  which,  when  paid,  will  inure  to  the  benefit  of 
B.  as  well  as  of  C. ;  the  consideration  is  paid;  the  lands  con- 
veyed; B.,  under  the  power  he  possesses,  imposes  annual  burdens 
upon  these  lands  for  15  years,  which  C.  pays;  B.  sleeps  for  28 
years  upon  his  rights,  in  ignorance  that  the  title  at  the  time  of  the 
conveyance  to  C.  was  in  him;  and  C.  has  meanwhile  openly  and  notor- 
iously asserted  his  title,  and  dealt  with  the  lands  as  his  own,  has  mort- 
gaged, sold,  and  conveyed  them,  and  all  this  while  the  evidence  of  title  is 
in  the  possession  of  B., — would  not  B.  be  estopped  to  assert  his  title? 
It  is  said  in  U.  S.  v.  Military  Road  Co.,  41  Fed.  Rep.  493 : 

"  Whatever  is  inequitable  as  between  man  and  man,  in  their  dealings 
with  each  other,  should  also  be  deemed  inequitable  as  between  the  United 
States  and  those  with  whom  they  condescend  to  deal  under  like  circum- 
stances." 

Applying  the  principles  of  the  above  cases,  and  others  that  might  be 
cited,  to  the  present  case,  I  can  find  no  escape  from  the  conclusion  that 
the  claim  of  the  complainant  has  become  stale,  and  that  it  is  now 
estopped  to  assert  title  in  itself.  The  claim  of  the  State  has  no  founda- 
tion in  equity,  justice,  or  good  conscience.  The  maxim  that  "where  one 
of  two  parties,  neither  of  whom  has  acted  dishonestly,  must  suffer,  he 
shall  suffer  who,  by  his  own  act,  has  occasioned  the  confidence  and  conse- 
quent injury  of  the  other,"  applies  to  the  present  case,  in  which  Mr. 
Sleeper,  the  Deputy  Commissioner  of  the  State  Land  Office,  testifies  that 
it  required  the  labor  of  three  years  to  examine  the  records  in  that  office 
and  collate  the  evidence  upon  which  he  now  bases  the  claim  of  the  State. 

The  decree  of  the  court  below  must  be  reversed,  and  the  bill  dismissed, 
with  costs  of  both  courts. 

The  other  Justices  concurred.' 

^See  authorities  'pro  and  con  in  Bigelow's  Estoppel,  5th  ed.,  pp.  340-341. 


594  CAEFOOT  v.  CAEFOOT  [part  u 


Section  6.   Conversion,  Reconversion,  and  Election. 


DAVIE  V.  BEARDSHAM. 

In  Chancery,  1663. 

[1  Chancery  Cases  39.] 

See  this  case  as  printed  ante^  p.  310.' 


CAEFOOT  V.  CAEFOOT. 

In  Chancery,  1663. 

[1  Chancery  Cases  35.] 

Lands  were  devised  to  the  feme  for  life,  afterwards  to  be  sold  by  the 
executor  for  younger  children's  portions ;  the  executor  dies,  the  feme 
dies :  the  younger  children  prefer  their  bill  against  the  heir ;  he  demurrs, 
because  but  an  authority  in  the  executor,  which  is  dead  with  them,  but 
the  demurrer  was  overruled. 

^  "I  will  say  nothing  particular  of  the  second  question,  being  merely  eon- 
sequential  to  the  determination  of  the  first;  for  there  is  no  case,  where  the 
representative  of  the  personal  estate  is  intitled  to  claim  the  money,  arising 
by  sale  of  the  lands,  as  personal  estate;  except  where  one  or  other  of  the 
contracting  parties  in  the  purchase  is  intitled  to  carry  it  into  execution  in 
a  court  of  equity:  For  where  the  court  holds,  it  ought  not  to  be  executed, 
there  is  no  conversion  of  real  into  personal  in  consideration  of  the  court,  upon 
which  that  right  of  the  executor  depends:  for  if  not  effectually  converted 
into  money,  it  must  be  considered  according  to  its  original  nature  as  real ; 
and  the  heir  at  law  must  have  the  benefit.  Whether  there  is  any  such  con- 
version, depends  on  there  being  an  effectual  agreement  binding  on  all  parties, 
so  as  under  all  the  circumstances  it  ought  to  be  carried  into  execution  upon 
this  general  principle  of  equity;  that  what  is  contracted  for  valuable  consid- 
eration to  be  done,  will  by  the  court  be  considered  as  done ;  all  the  consequences 
arising  as  if  it  had  been  so,  and  as  if  a  conveyance  had  been  made  of  the  land 
at  the  time  to  the  vendee.  But  if  the  circumstances  are  such,  that  it  cannot 
now,  or  ought  not  to  be  ca'rricd  into  execution,  though  once  it  might,  these- 
consequences  cannot  follow;  for  the  court  must  consider  it  as  land,  and  the 
money  as  the  party's  own,  who  was  to  be  the  purchaser."  Per  Lord  Hardwicke. 
in  Atty.-Gen.  v.  Day,  1748-9,  1  Vescy  Sr.  218,  220. 


CHAP,  v.]  GREENHILL  v.  GREENHILL  595 


GREENHILL  v.  GREENHILL. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1711. 

[2    Vernon   679.] 

Mr.  Greenhill  the  testator  employed  one  YouBg  to  article  for  the  pur- 
chase of  lands,  part  whereof  lay  in  Cornwall,  and  are  called  customary 
lands,  and  although  they  pass  by  lease  and  release;  yet  by  the  custom 
of  the  county  palatine  of  Cornwall,  they  cannot  be  devised  without  a 
surrender. 

The  articles  were  made  in  April,  the  consideration-money  paid,  and 
conveyance  to  be  executed  at  Michaelmas  then  next  following.  In  June 
the  testator  made  his  will,  and  devised  the  residue  of  his  personal  estate, 
after  debts  and  legacies  paid,  to  be  laid  out  in  land;  and  the  lands  so  to 
be  purchased,  together  with  his  freehold  estate,  to  be  settled  on  the  plain- 
tiff and  his  first  son,  &c. 

The  testator  afterwards  at  Michaelmas  entered,  and  paid  the  considera- 
tion-money, and  in  Michaelmas  1707,  conveyances  were  perfected,  an 
Act  of  Parliament  being  found  necessary,  and  died,  leaving  the  defend- 
ant, and  the  plaintiff's  mother,  his  daughters  and  co-heirs. 

The  question  was,  whether  the  land  thus  contracted  for,  especially  the 
customary  lands,  passed  by  this  will. 

Decreed  for  the  plaintiffs,  and  confirmed  upon  a  rehearing.  And  the 
principle  of  this  case  acknowledged  in  Langford  v.  Pitt,  2  P.  Wms.  629, 
and  cases  cited  in  note  there. 

First.  That  the  articles  being  made  in  April,  1706,  and  the  will  in 
June  following,  although  possession  was  not  to  be  given  till  Michaelmas 
following,  it  was  such  an  interest  as  was  devisable,  and  well  passed  by  the 
will.  That  the  words  were  sufficient;  all  the  residue  of  his  personal 
estate  to  be  invested  in  land,  and  together  with  his  freehold  estate  to  be 
settled.  The  freehold  estate  was  mentioned  only  in  contradistinction 
to  his  personal  estate.  Whether  real  or  personal,  the  whole  intended 
for  the  plaintiff. 

Objection. — First.  The  articles  were  in  Young's  name;  and  Young 
made  no  declaration  of  trust  in  writing. 

Secondly.    The  estate  of  feme  covert. 

Thirdly.  No  surrender  of  the  customary  estate. 

Per  Cur.  An  equitable  interest  is  as  well  devisable,  as  a  legal  estate. 
A  future  interest  is  devisable.  No  surrender  wanting;  because  he  had  an 
equitable,  and  not  the  legal  estate  (this  seems  to  be  clearly  settled  by 
King  V.  King,  3  P.  Wms.  358,  and  cases  cited  in  not.,  p.  360  there)  :  and 
Young  having  owned  the  trust,  and  the  feme  covert  not  opposing;  but 
having  submitted  to^  and  conveyed  according  to  the  articles,  these  objec- 
tions were  not  material. 


596  SCUDAMORE  et  al.  v.  SCUDAMOEE  [part  i. 

The  testator  after  the  date  of  his  will,  having  taken  a  conveyance 
to  himself  and  his  heirs. 

Q.  If  it  did  not  amount  to  a  revocation.  This  question  must  be 
decided  by  the  principle  on  vphich  revocation  stands,  namely,  that  the 
estate  must  remain  in  the  same  plight,  and  unaltered  at  the  testator's 
death,  as  it  was  in  at  the  time  of  executing  the  will.  Sparrow  v.  Hard- 
castle,  3  Atk.  798,  803.  But  by  the  report  of  the  case  in  Pre.  Ch.  320, 
the  conveyance  was  to  Young.* 


SCUDAMORE  et  al.  v.  SCUDAMORE. 
In  Chancery,  before  Lord  Chancellor  Macclesfield,  1720. 

[Precedents  in  Chancery  543.] 

The  Lady  Jane  Scudamore,  by  her  will  in  1696,  gave  the  sum  of  £8,000 
to  her  daughter,  Mrs.  Prince,  to  be  laid  out  by  her  in  a  purchase  of  lands, 
to  be  settled  to  the  use  of  herself  for  life,  with  remainder  to  John 
Scudamore  and  his  heirs,  and  in  case  he  died  in  the  lifetime  of  the  said 
Mrs.  Prince,  to  the  Lord  Scudamore,  his  heirs,  executors,  and  administra- 
tors. John  Scudamore  died  in  the  year  1714,  and  in  the  lifetime  of  Mrs. 
Prince.  The  Lord  Scudamore  likewise  died  in  the  lifetime  of  Mrs. 
Prince,  in  the  year  1716,  having  about  three  months  before  his  death 
made  his  will,  and  the  plaintiff  his  lady  executrix,  and  having  given 
several  legacies  to  the  other  plaintiffs,  and  leaving  the  defendant.  Prances 
Scudamore,  his  only  daughter  and  heir  at  law,  an  infant ;  and  in  the  year 
1717  Mrs.  Prince  died,  and  the  money  had  never  been  laid  out;  and  now 
this  bill  was  brought  by  the  plaintiff  against  the  Lady  Frances,  heir  at 
law,  and  against  the  executors  of  Mrs.  Prince,  to  have  the  money  for  the 
benefit  of  the  executors  and  legatees  of  the  Lord  Scudamore,  and  that  no 
purchase  might  be  made  for  the  benefit  of  the  defendant,  the  heir  at  law 
of  Lord  Scudamore. 

'As  appears  from  Langford  v.  Pitt,  1731,  2  P.  Wms.  629,  Sir  Joseph 
Jekyll  appeared  for  the  plaintiff  in  the  principal  case,  and  when  pressed 
with  his  argument,  thus  distinguished  the  past  from  the  present: 

"I  admit  the  case  of  Greenhill  and  Greenhill,  in  which  I  myself  was  of 
counsel,  to  have  been  so  determined ;  but  this  material  difference  is  observable 
between  the  two  cases:  there  the  articles  for  the  purcliase  were  entered  into 
by  the  testator  before  he  made  his  will,  and  so  the  eqviitable  interest  was 
desirable,  but  in  the  present  case  Governor  Pitt's  will  was  made  prior  to 
the  articles  for  this  purchase,  before  be  had  any  equitable  interest  in  the 
land,  consequently  when  he  had  no  kind  of  title,  he  could  devise  nothing." 

It  may  be  of  interest  to  note  in  passing  that  tlie  defendant  Pitt  was  the 
grandfather  of  "the  Great  Commoner." 

For  the  distinction  here  taken,  see  Alleyn  v.  Alleyn,  598,  -post. 


CHAP,  v.]  SCUDAMORE  v.  SCUDAMORE  597 

Lord  Chancellor  was  clear  of  opinion,  and  decreed  accordingly  that  the 
money  belonged  to  the  defendant,  the  heir  at  law,  as  the  lands  would  have 
done  if  a  purchase  had  actually  been  made,  as  it  ought  to  have  been,  by 
Mrs.  Prince,  the  trustee,  and  that  to  decree  it  otherwise  would  be  to  put 
it  into  her  power  and  election  which  of  the  two  should  have  it ;  for  if  the 
purchase  had  been  made,  it  must  have  gone  to  the  heir,  but  if  she,  by 
delaying  the  purchase,  may  alter  the  right,  and  give  it  to  the  executors, 
this  would  be  to  make  it  her  will,  and  not  the  will  of  the  first  testator, 
which  would  be  very  unreasonable  and  inconvenient ;  and  therefore, 
though  the  trust  for  laying  out  the  money  was  personally  confined  to 
Mrs.  Prince,  without  nominating  executors,  yet  they  were  implied 
and  included  in  it;  and  this  case  was  the  stronger,  because  the  heir 
at  law  of  Lord  Scudamore  was  an  infant,  and  as  Mrs.  Prince  survived 
my  lord  two  years,  the  infant  heir  might  have  brought  her  bill 
against  Mrs.  Prince  herself,  the  trustee,  to  have  had  the  purchase  made, 
and  her  laches  in  not  doing  it  is  not  to  turn  to  her  prejudice,  being  an 
infant.  The  cases  cited  were  Linguen  and  Souray  in  Lord  LIarcourt's 
time,  and  a  case  lately  decreed  of  Jones  cont.  Powell. 

Note. — In  this  case  it  was  agreed  by  my  Lord  Chancellor  to  be  a 
declared  rule  in  this  court,  that  if  money  be  devised  to  be  laid  out  in 
the  purchase  of  lands,  to  be  settled  on  one  and  his  heirs,  that  the  per- 
son himself,  for  whose  benefit  the  purchase  was  to  be  made,  may  come 
into  this  court  and  pray  to  have  the  money  itself,  and  that  no  purchase 
may  be  made,  because  none  have  an  interest  in  it  but  himself;  but  if 
he  dies  before  the  purchase  made,  or  payment  of  the  money,  so  that  the 
question  comes  between  his  heirs  and  executors,  which  of  them  shall 
have  the  money,  the  heir  shall  be  preferred,  and  it  shall  for  his  benefit 
be  considered  in  a  court  of  equity,  as  if  the  purchase  had  been  actually 
made  in  the  life  of  his  ancestor,  for  two  reasons :  1st.  Because  the  heir 
is  to  be  favored  in  all  cases,  rather  than  the  executors,  who  by  the  old 
law  were  to  have  nothing  to  their  own  l^se.  2d.  If  the  executor 
should  have  it,  it  would  be  against  the  words  of  the  will,  which  gave  it 
to  the  heirs.' 

^  "The  rule  equally  applies  to  money  devised  to  be  laid  out  in  land.  The 
authorities  to  show  that  money  agreed  or  directed  to  be  laid  out  in  land 
is  to  be  considered  as  land  are  very  numerous.  The  force  of  the  rule  is  par- 
ticularly evinced  by  those  cases  in  which  it  has  been  held  that  the  money 
agreed  or  directed  to  be  laid  out  so  fully  becomes  land  as,  first,  not  to  be 
personal  assets.  Earl  of  Pembroke  v.  Beighden,  3  Ch.  115;  2  Vern.  .'52; 
Lawrence  v.  Beverly,  2  Keble,  841 ;  cited  also  in  Kettleby  v.  Attwood,  1  Vern. 
298,  741.  Secondly,  to  be  subject  to  the  curtesy  of  the  husband,  though  not 
to  the  dower  of  the  wife.  Sweetapple  v.  Bindon,  2  Vern.  5.3G;  Otway  v.  Hud- 
son, 2  Vern.  583.  Thirdly,  to  pass  as  land  by  will,  if  subject  to  the  real 
use  at  the  time  the  will  was  made.  See  ch.  4,  §  2,  note  (n).  See  also 
Milner  v.  Mills,  Mosely  123;  Greenhill  v.  Greenhill,  2  Vern.  679;  Prec.  Ch. 
320;  Shorer  v.  Shorer,  10  Mod.  39;  Linguen  v.  Souray,  1  P.  Wms.  172;  Guidot 
V.  Guidot,  3  Atk.  254.     Fourthly,  not  to  pass  as  money  by  a  general  bequest 


598  ALLEYN  v.  ALLEYN  [part  i. 

ALLEYN  V.  ALLEYN. 

In  the  Rolls^  before  Sir  Joseph  Jekyll,  M.  R.,  1729 

\_Mosely,  262.] 

One  Stephenson  made  his  will  in  1727  devising  all  the  reversion  and 
inheritance  of  his  lands,  &c.,  to  one  Allen,  his  grandson,  and  the 
residue  of  his  personal  estate  to  his  executor,  in  trust  to  be  laid  out  in 
lands  to  the  use  of  said  grandson.  In  1728  the  testator  contracted  for 
the  purchase  of  land  and  died.  The  purchase  was  completed  by  the 
executor,  and  the  question  was  whether  the  land  purchased  after  the 
will,  passed  to  the  testator's  heir,  one  Mrs.  Alleyn,  or  to  the  testator's  de- 
visee, who  in  the  case  was  the  son  of  Mrs.  Alleyn.' 

Master  of  the  Rolls  [Sir  Joseph  Jekyll].     I  am  of  opinion  that  the 

to  a  lei^atee,  but  it  will  by  a  particiilar  description,  as  so  much  money  to 
be  laid  out  in  land.  Cross  v.  Addenbioke ;  Fulham  v.  Jones,  cited  in  a  note 
to  Leehmere  v.  Earl  of  Carlisle,  3  P.  Wms.  222;  or  by  a  bequest  of  all  the 
testator's  estate  in  law  and  equity.  Rashleigh  v.  Masters,  1  Ves.  Jr.  204. 
But  equity  will  not  consider  money  as  land  unless  the  covenant  or  direction 
to  lay  it  out  in  land  be  express.  Symons  v.  Rutter,  2  Vern.  227 ;  Curling  v. 
May,  M.  8,  G.  2,  cited  in  Guidot  v.  Guidot.  3  Atk.  255.  And  as  money 
agreed  or  directed  to  be  laid  out  in  land  shall  in  general  be  considered  as 
land,  so  land  agreed  or  directed  to  be  sold  shall  be  considered  and  treated 
as  money.  Gilb.  Lex  Pra?toria,  243 ;  but  see  Ashby  v.  Palmer,  1  Merivale  296. 
As  to  from  what  time  the  conversion  shall  be  supposed,  see  Sitwell  v.  Bernard, 
6  Ves.  520;  Elwin  v.  Elwin,  8  Ves.  547.  And  the  creditors  of  the  bargainer 
may  compel  the  heir  to  convey  the  land.  Best  v.  Stanford,  1  Salk.  154.  But  it 
must  not  be  understood  that  where  a  testator  directs  his  real  estate  to  be 
sold  for  purposes  which  are  answered  out  of  the  personal  estate  the  next  of 
kin  may  insist  upon  the  real  estates  being  sold,  for  'there  is  no  equity 
between  the  next  of  kin  and  the  heir ;  but  the  general  principle  is,  that  the 
heir  takes  all  that  which  is  not  for  a  defined  and  specific  purpose  given  by 
the  will.'  Chitty  v.  Parker,  2  Ves.  Jr.  271 ;  ex  parte  Bromfield.  1  Ves.  Jr.  453; 
Oxenden  v.  Lord  Compton,  2  Ves.  Jr.  69;  Walker  v.  Denne,  2  Ves.  Jr.  170; 
Lord  Compton  v.  Oxenden,  2  Ves.  Jr.  361 ;  but  see  Wheldale  v.  Partridge, 
8  Ves.  235.  And  where  the  testator  was  entitled  to  a  fund,  as  money  or 
land,  his  real  and  personal  representatives  shall  take  it  as  money  or  as 
land,  according  as  the  testator  would  have  taken  it.  See  Ackroyd  v.  Smith- 
son,  and  the  cases  there  cited.  1  Bro.  Ch.  503.  See  also  Hewitt  v.  Wright, 
1  Bro.  Ch.  86,  as  to  Lord  Tiiurlow's  opinion  that  money  resulting  to  the 
heir,  as  being  produced  by  sale  of  real  estate  undisposed  of,  is  to  be  con- 
sidered as  personal  estate  of  the  heir,  and  as  such  would  go  to  his  executor. 
Russell  V.  Sinythies,  1  Cox  215.  But  if  the  use  and  possession  were  not  united 
it  would  still  be  considered  as  land.  Rashleigh  v.  Masters,  1  Ves.  Jr.  201 ; 
Wheldale  v.  Partridge,  8  Ves.  235."    Fonbl.  Eq.  B.  1,  ch.  6,  §  9,  note   (t). 

'  The  above  statement  is  taken  principally  from  the  marginal  note,  to  the 
case. 


CHAP,  v.]  ALLEYN  v.  ALLEYN  599 

plaintiff  is  intitled  to  this  estate  contracted  for,  and  the  purchase 
whereof  was  compleated  by  the  executor;  and  though  the  conveyance 
was  taken  by  the  executor  in  his  own  name,  he  is  only  her  trustee ;  so  the 
question  is  open,  whether  this  estate  shall  be  considered  as  real  estate. 
The  council  for  the  defendant  does  not  deny  that  it  ought  to  be  con- 
sidered as  real  estate,  if  it  was  not  for  the  directions  of  the  will,  to  lay  out 
the  personal  estate  in  lands.  In  the  case  of  Commissioner  Trimuel  who 
contracted  for  lands  at  a  future  day,  and  then  devised  all  his  lands; 
Lord  Harcourt  held  the  lands  contracted  for  would  pass,  which 
strongly  proves,  that  lands  contracted  for  are  to  be  considered  as  pur- 
chases, and  then  it  is  as  clear,  that  these  lands  being  contracted  for,  after 
the  making  the  will,  will  not  pass  by  it:  The  case  of  Sir  Owen  Bucking- 
ham was  adjudged  on  an  ejectment  in  the  Court  of  Common  Pleas, 
and  afterwards  on  another  ejectment  brought  in  the  Court  of  King's 
Bench,  and  that  judgment  affirmed  in  Parliament  on  writ  of  error;  and 
therefore  since  these  lands  will  not  pass  by  the  will,  and  must  be  consid- 
ered as  part  of  the  testator's  real  estate,  they  must  descend  to  the  plain- 
tiff, his  heir,  and  she  cannot  be  defeated  of  them,  but  by  the  express 
words  of  the  will,  or  by  necessary  implication;  and  I  think  the  words  of 
the  will,  that  the  residue  of  his  personal  estate  shall  be  invested  in  lands, 
&c.,  is  not  either  an  express  disinherision,  or  by  implication.  The  per- 
sonal estate  is  not  to  be  considered,  as  it  stands  at  the  time  of  the  making 
the  will,  but  at  the  time  of  the  testator's  death,  because  till  that  time,  it  is 
in  a  constant  fluctuation,  but  so  much  of  it  as  would  serve  for  the  pvir- 
chase  of  these  lands  lost  the  quality  of  personal  estate  in  this  Court  at 
the  time  of  his  death,  and  became  real  estate,  and  he  has  shewed  his 
intention  to  alter  the  nature  of  this  estate,  having  by  a  subsequent  act 
controlled  his  will  as  to  so  much,  and  this  is  clear  from  hence,  that  if  he 
had  lived  to  complete  the  purchase,  the  lands  would  not  have  passed  as 
real  estate,  because  the  purchase  was  subsequent  to  his  will,  nor  as  per- 
sonal estate,  because  the  nature  of  it  was  altered,  and  the  accident  of  his 
dying  before  the  purchase  was  compleated,  makes  no  alteration :  So  here 
is  no  ground  to  say,  it  was  his  intention  to  give  all  his  real  and  per- 
sonal estate,  because,  he  was  going  to  apply  part  of  his  personal  estate 
in  such  a  manner,  that  it  would  not  have  passed  by  this  will,  either 
as  his  real  or  personal  estate,  and  it  would  be  the  same  thing,  if  he 
had  given  the  defendant  all  his  real  and  personal  estate,  for  his  inten- 
tion plainly  appears  to  take  so  much  out  of  his  personal  estate,  and  he 
shows  no  design  to  pass  it  as  his  real  estate,  because  by  law  it  could 
not  pass  by  this  devise.' 

^  Such  money  will  be  bound  by  a  judgment  as  would  land.  Frederick  v. 
Aynscombe,  1739,  1  Atk.  392.  Conversely  land  contracted  to  be  sold  cannot 
be  reached  by  the  vendor's  creditors.  Turner  v.  Davis,  1883,  41  Arkansas  270. 
So  money  directed  or  agreed  to  be  laid  out  in  land  has  been  held  subject  to 
courtesy.  Sweetapple  v.  Bindon,  1705,  2  Vernon  536;  Cunningbam  v.  bloody, 
1748,  1  Vesey  Sr.  174.     Upon  the  principles  of  equitable  conversion  a  devise 


600  GUIDOT  V.  GUIDOT  [part  i. 

GUIDOT  V.  GUIDOT. 

In  Chancery,  before  Lord  Hardwicke,  1745. 

[3  Atkyns  254.] 

The  bill  was  brought  that  the  defendant,  Mr.  Guidot,  may  account  for 
£4,000  and  interest  from  August,  1735,  and  that  the  defendant,  Mr. 
Child,  may  account  for  £1,800  pounds  and  interest. 

By  articles  made  previous  to  the  marriage  of  Anthony  Guidot  (the  de- 
fendant's brother)  with  the  plaintiff,  reciting  "her  portion  to  be  £2,800, 
and  that  the  defendant,  as  an  advancement  of  his  brother,  and  for  a 
better  provision  for  the  plaintiff  and  the  issue  of  the  marriage,  had 
agreed  to  pay  £4,000,  it  was  thereby  declared  and  agreed  that  the  £2,800 
and  the  £4,000  should  be  laid  out  in  the  purchase  of  lands  in  Great  Bri- 
tain, or  in  some  church,  college,  or  other  renewable  lease,  to  be  settled  to 
the  same  uses  and  trusts  as  the  freehold  and  leasehold  estates  (which 
Anthony  was  seised  and  possessed  of)  are  appointed  to  be  settled,  the 
last  limitation  to  Anthony  and  his  heirs,  and  until  a  purchase  could 
be  had  in  trust  for  the  trustees  to  put  out  the  said  money  upon  mort- 
gages, or  On  government  or  other  securities,  and  to  apply  the  produce 
as  if  lands  had  been  purchased." 

The  £2,800  and  the  £4,000  have  not  been  invested  in  the  purchase  of 
any  freehold  or  leasehold  lands,  but  the  same  remained  in  money  to 
the  death  of  Anthony  Guidot. 

"Anthony  Guidot  by  his  will  devised  all  his  freehold,  leasehold,  and 
copy-lands  lying  in  Islington,  and  in  Elsfield  in  Hampshire,  or  elsewhere, 
to  the  plaintiff  during  her  life,  and  after  her  death  to  the  defendant 
Guidot  and  his  heirs;  and  as  to  his  personal  estate  of  what  nature  and 
kind  soever,  he  gave  the  same  to  the  plaintiff,  paying  his  debts  and  lega- 
cies, and  made  her  and  defendant  Guidot  his  executors." 

The  plaintiff  insisted  that  the  £2,800  and  £4,000  ought  to  be  taken  to 
be  part  of  the  testator's  personal  estate,  and  that  she  is  entitled  thereto 
as  part  of  the  residuvm  of  such  personal  estate  bequeathed  to  her  by  the 
testator's  will,  and  that  the  defendant  Guidot  had  no  power  to  make  any 
purchase  with  these  two  sums,  it  not  being  the  intent  of  the  articles. 

The  defendant  Guidot  submitted  to  the  court  whether  the  £2,800  and 
£4,000,  being  a  marriage  portion  articled  to  be  paid  out  on  land,  is 
not  in  this  court  considered  as  land,  and  consequently  does  not  belong 
to  the  plaintiff,  nor  is  included  in  the  bequest  of  personal  estate;  and 
likewise  leaves  it  to  the  judgment  of  the  court  whether  these  sums  ought 

to  an  alien  which  would  be  void  as  land  may  be  good  as  a  gift  of  money. 
Craig  V.  Leslie,  1818,  .3  Wheat.  563,  post.  Rll ;  Da  Ilourmelin  v.  Sheldon,  1838, 
1  Beavan,  79;  DeBarante  v.  Gott,  1849,  6  Barb.  492,  497. 


CHAP,  v.]  GUIDOT  V.  GUIDOT  601 

not  to  be  laid  out  in  the  purchase  of  land,  and  settled  to  the  uses  of  the 
marriage  articles  and  will. 

The  counsel  for  the  plaintiff  cited  Soresby  v.  Hollings,  August  6,  1740, 
and  1  P.  Wms.  172,  and  Mallabar  v.  Mallabar,  Cases  in  Ch.  in  the 
time  of  Lord  Talbot,  78,  and  1  Rolls  725,  and  Curling  v.  May,  M.  term  8 
Geo.  2,  before  Lord  Tai.bot;  the  last  case  with  an  intent  to  show  that, 
when  it  is  doubtful,  whether  it  ought  to  be  considered  as  money  or 
land,  this  court  will  not  interfere ;  and  they  stated  it  thus : 

"A  gives  £500  to  B  in  trust  that  B  should  lay  out  the  same 
upon  a  purchase  of  lands,  or  put  the  same  out  on  good  securities  for  the 
separate  use  of  his  daughter  H  (the  plaintiff's  then  wife),  her  heirs,  ex- 
ecutors, and  administrators,  and  died  in  1729.  In  1731  H,  the  daughter, 
died  without  issue  before  the  money  was  vested  in  a  purchase;  the 
husband  as  administrator  brought  a  bill  for  the  money  against  the 
heir  of  H,  and  the  money  was  decreed  to  the  administrator,  for  the  wife 
not  having  signified  any  intention  of  a  preference,  the  court  would 
take  it  as  it  is  found;  if  the  wife  had  signified  any  intention,  it  should 
have  been  observed,  but  it  is  not  reasonable  now  to  give  either  her  heir 
or  administrator,  or  the  trustee,  liberty  to  elect;  for  Lord  Talbot  said, 
it  was  originally  personal  estate,  and  yet  remained  so,  and  nothing 
could  be  collected  from  the  will,  as  to  what  was  the  testator's  principal 
intention." 

Mr.  Attorney-General  cited  for  the  defendant  the  case  of  Linguen  v. 
Souray,  Prec.  in  Ch.  400,  and  1  P.  Wms.  172. 

Lord  Chancellor.  The  question  is,  whether  these  two  sums  are  to 
be  considered  as  money  or  land;  I  see  but  very  little  doubt  in  this 
case  (and  stopped  Mr.  Attorney-General  from  going  on  for  the  de- 
fendant). 

The  articles  say,  it  shall  be  laid  out  in  the  purchase  of  lands  of  in- 
heritance, or  in  church,  and  leasehold. 

Then  the  court  must  take  it  to  be  the  one  or  the  other;  and  during 
the  life  of  the  husband  and  the  wife,  if  laid  out,  it  must  have  been  in 
one  or  the  other. 

No  sort  of  election  was  made  by  the  husband;  then  at  the  time  of 
the  will  and  his  death,  it  stood  in  equity  as  it  did  in  the  articles,  either 
to  be  laid  out  in  freehold  or  leasehold;  and,  therefore,  this  court  will 
call  it  one  or  the  other,  according  to  the  rule  in  equity,  that  what  is 
agreed  to  be  done  must  be  considered  as  done. 

If  it  had  not  been  for  the  locality,  estates  in  Middlesex  and  Hampshire, 
no  doubt  could  have  arisen ;  but  then  follows,  as  elsewhere,  which  is 
the  most  comprehensive  word  he  could  have  used. 

It  is  said  the  lands  do  not  lie  anywhere,  for  they  are  not  yet  purchased. 

When  people  make  such  descriptions  as  the  testator  had  done  here, 
they  intend  to  pass  everything  they  have  in  the  world;  now  the  money 
is  somewhere,  and  that  by  the  transmutation  of  this  court  is  changed 
into  land. 


602  LA  WES  V.  BENNET  [part  i. 

Money  is,  in  England,  like  hona  notabilia  in  the  ecclesiastical  court, 
which  must  be  either  in  the  diocese  of  the  bishop  where  the  person  dies, 
or  in  the  diocese  of  the  metropolitan,  if  he  was  possessed  of  money  in 
different  places ;  so  here  it  is  either  in  money  or  a  mortgage,  and  there- 
fore the  word  elsewhere  certainly  takes  it  in. 

Then  I  must  consider  it  as  laid  out  in  one  or  the  other ;  Linguen  v. 
Souray  is  a  case  in  point,  for  there  was  as  much  an  objection  upon  the 
locality  as  in  the  present/ 

I  declare  that  the  £2,800  and  £4,000  under  the  articles  ought  to  be 
laid  out  in  the  purchase  of  lands  of  inheritance,  or  in  church  and  lease- 
hold; for  if  there  had  been  only  a  general  devise  of  his  lands  this  money 
would  certainly  have  passed.^ 


LA  WES  V.  BENNET. 

In  Chancery,  before  Sir  Lloyd  Kenyon,  M.  R.,  1785. 

[1  Cox  Equity  166.] 

Thomas  Witterwronge,  seised  in  fee  of  a  farm  called  Bentley,  demised 
the  same  to  one  Douglas  for  a  period  of  seven  years  from  Oct.  2,  1758. 
Upon  the  back  of  the  indenture  was  indorsed  a  memorandum  giving  to 
Douglas  the  option  of  purchasing  any  time  between  Sept.  29,  1761,  and 
Sept.  29,  1765.  Under  date  of  Sept.  1,  1761,  Witterwronge  made  his  will, 
by  which  he  left  all  his  real  property  to  his  cousin  John  Bennet,  and  his 
personal  property  to  Bennet  and  Bonnet's  sister  Mary,  who,  with  her 
husband,  is  plaintiff.  Witterwronge  died  in  June,  1763,  and  the  personal 
estate  was  divided  between  John  Bennet  and  the  plaintiff,  both  signing 
and  allowing  the  account  between  them.  John  Bennet  died  in  1779, 
leaving  the  defendant,  his  widow,  executrix.  Douglas  assigned  his  rights 
under  the  contract  of  lease  to  one  Waller  who  exercised  the  option  of 
purchase  on  Feb.  2,  1765.  Bennet  and  Douglas  executed  deeds  of  lease 
and  release  according  to  the  agreement.     The  plaintiff  now  sues  for  her 

^By  marriage  articles  £700,  being  the  wife's  portion,  together  with  £700 
to  be  added  to  it  by  the  husband,  was  agreed  to  be  laid  out  in  the  purchase  of 
lands,  to  be  settled  in  striet  settlement,  witli  remainder  in  the  usvial  form 
to  the  heirs  of  the  husband ;  before  any  purchase  made  the  husband  dies  with- 
out issue,  having  first  devised  his  personal  estate,  which  was  of  greater  value 
than  the  £1,400,  but  without  taking  notice  of  it,  to  his  wife,  and  his  real 
estate  to  his  two  nephews,  one  of  whom  was  his  heir  at  law,  this  money  shall 
in  a  court  of  equity  be  looked  upon  as  land,  and  the  devise  to  the  wife, 
which  was  of  greater  value,  as  a  satisfaction  thereof.     Pree.  in  Ch.  400. 

'Accord  Knights  v.  Atkyns,  1080,  2  Vernon  20;  see  also  Annand  v.  Honey- 
wood,  1G85,  1  Vernon  345. 


CHAP,  v.]  LAWES  V.  BENNET  G03 

moiety  of  the  purchase  money,  on  the  theory  that  it  was  part  of  the 
personal  estate  of  Witterwronge.  And  this  was  the  single  question  in 
the  cause,  whether  the  premises  being  part  of  the  testator's  real  estate  at 
the  time  of  his  death,  but  sold  afterwards  under  the  circumstances  afore- 
said, the  purchase  money  should  be  considered  as  part  of  the  real 
or  personal  estate  of  the  testator.' 

Master  of  the  Rolls. — Although  this  case  may  be  new  in  species,  yet  the 
principles  upon  which  it  seems  to  me  to  depend  are  perfectly  clear,  and 
are  so  well  established  in  this  court,  that  if  I  am  wrong  it  must  be  by 
misapplication  of  those  principles.  No  stress  can  be  laid  upon  the  will 
of  Witterwronge,  for  that  is  expressed  in  very  general  terms.  He  had 
two  species  of  property,  one  of  which  he  gives  to  Bennet,  the  other  to 
Bennet  and  his  sister.  Then  which  kind  of  property  is  the  present? 
It  is  very  clear  that  if  a  man  seized  of  a  real  estate  contract  to  sell 
it,  and  die  before  the  contract  is  carried  into  execution,  it  is  personal 
property  of  him.  Then  the  only  possible  difficulty  in  this  case  is,  that  it 
is  left  to  the  election  of  Douglas  whether  it  shall  be  real  or  personal.  It 
seems  to  me  to  make  no  distinction  at  all.  Suppose  a  man  should  bargain 
for  the  sale  of  timber,  provided  the  buyer  should  give  proper  security 
for  the  payment  of  the  money.  This  when  cut  down  would  be  part  of  the 
personal  estate,  although  it  depends  upon  the  buyer  whether  he  gives 
security  or  not;  (as  to  what  has  been  said  about  Douglas'  being  able 
to  release  his  power  of  election,  I  think  a  court  of  equity  would  relieve 
against  that,  if  it  appeared  to  be  done  collusively  to  oust  the  legatee 
of  his  personal  estate)  when  the  party  who  has  the  power  of  making  the 
election  has  elected,  the  whole  is  to  be  referred  back  to  the  original 
agreement,  and  the  only  difference  is,  that  the  real  estate  is  converted 
into  personal  at  a  future  period.  The  case  of  Bowes  v.  Lord  Shrewsbury, 
5  Bro.  Pari.  Ca.  260,  shows  the  nature  of  the  property  may  be  altered 
otherwise  than  by  the  act  of  the  original  owner,  although  that  was 
altered  by  the  act  of  the  legislature,  and  not  of  any  third  person :  but  it 
shows  generally  that  there  is  no  impossibility  in  the  nature  of  the  thing. 
;As  to  the  length  of  the  time,  I  think  I  can  take  no  notice  of  it  in  this 
case,  for  here  there  is  no  pretence  to  presume  the  demand  satisfied.  Ou 
the  contrary,  it  has  been  withholden  for  another  reason.  I  must  there- 
fore declare  this  £3000  to  be  part  of  the  personal  estate  of  the  testator, 
and  that  the  plaintiffs  are  entitled  to  one  moiety  thereof,  and  the 
Master  must  inquire  whether  the  plaintiff  Thomas  has  made  any,  and 
what  settlement  on  the  plaintiff  Mary,  etc.  And  as  to  interest,  as  it 
appears  that  Bennet  laid  out  this  money  in  the  funds,  and  consequently 
has  made  interest  of  it;  he  must  be  answerable  for  interest,  from  1st 
February,  at  4  per  cent.' 

^  The  statement  of  facts  is  abridged  and  the  arguments  of  counsel  are 
omitted. 

^Accord  Townley  v.  Bedwell,  1808,  14  Ves.  590;  In  re  Isaacs,  1894,  3  Ch. 
506;   where  an  intestate  had  entered  into  contract  for  the  purchase  of  real 


604  EDWARDS  v.  WEST  [part  i. 

EDWARDS  V.  WEST. 

In  the  Supreme  Court  op  Judicature,  Chancery  Division,  1878. 

[Law  Reports,  7  Chancery  858.] 

Ery,  J. : — The  Plaintiffs  in  this  case  allege  that  the  option  of  purchase 
which  was  given  by  the  lease  of  the  29th  of  September,  1870,  to  be  exer- 
cised by  a  notion  given  on  or  before  the  25th  of  March,  1875,  and  to  be 
carried  into  completion  on  or  before  the  29th  of  September,  1875,  was  en- 
larged by  subsequent  correspondence,  that  by  virtue  of  that  correspond- 
ence a  new  contract  was  constituted  under  which  the  29th  of  Sep- 
tember, 1876,  was  substituted  for  the  25th  of  March,  1875,  and  that  the 
option  was  exercised  on  the  28th  of   September. 

I  will  assume,  for  the  purpose  of  the  present  judgment,  that  the 
Plaintiffs  are  correct  in  that  contention.  There  are,  therefore,  four  dates 
material  to  consider ;  first,  that  of  the  contract  creating  the  option ; 
secondly,  that  of  the  injury  to  the  premises;  thirdly,  that  for  the 
exercise  of  the  option ;  and  fourthly,  that  for  the  completion  of  the  pur- 
chase according  to  that  option. 

Now  the  point  which  I  am  about  to  decide  arises  from  the  payment  of 
a  sum  of  between  £11,000  and  £12,000  by  the  insurance  offices  to  the  De- 
fendant consequent  upon  the  injury  to  the  property  by  fire  on  the  6th  of 
May,  1876.  The  Plaintiffs  contend  that  that  money  so  received  by  the 
Defendant  was  received  by  him  as  part  payment  of  the  £14,000,  which  the 
Plaintiffs,  under  the  option,  were  bound  to  pay ;  and  that  contention  has 
been  supported  by  three  methods  of  argument. 

In  the  first  place,  it  has  been  said  that  by  the  law  of  England  the 
exercise  of  the  option  causes  it  to  relate  back  to  the  time  of  the  creation 
of  the  option  in  such  a  manner  as  to  render  the  property  for  this  purpose 
property  of  the  purchaser  as  from  the  date  of  the  contract  which  gave  the 
option ;  so  that  here,  although  the  option  was  given  by  a  contract  made  in 
April,  and  not  exercised  till  the  28th  of  September,  yet  that  when  it  was 
so  exercised  on  the  28th  of  September,  it  operated  retrospectively,  and 
made  the  property  the  property  of  the  purchaser  as  from  the  month  of 
April  preceding,  and  consequently  made  the  vendor  trustee  of  the  fruits 

estate,  which  the  vendee  had  rescinded  under  a  power  reserved  to  him,  it 
has  been  held  that  the  heir  of  the  testator  was  entitled  to  the  purchase 
money,  Hudson  v.  Cook,  1870,  L.  R.  13  Eq.  417;  see  also  Kerr  v.  Day,  1850, 
14  Pa.  St.  112;  but  in  some  of  the  United  States  it  has  been  held  that  the 
conversion  does  not  relate  back,  Smith  v.  Loewenstein,  1893,  50  Ohio  State  346; 
where  specific  perff)rniancc  is  refused  because  of  the  laches  of  testator's  heir, 
it  has  l)cen  held  that  the  conversion  will  be  sustained,  the  property  is  sold 
by  the  court  and  the  proceeds  divided  according  to  the  statute  of  distribu- 
tion, Keep  V.  Miller,  1886,  42  N.  J.  Eq.  100. 


CHAP,  v.]  EDWAKDS  v.  WEST  605 

of  the  property  for  the  purchaser.  Now  it  appears  to  me  that  such  a 
conclusion  would  be  highly  inconvenient,  because  it  would  place  a  person 
under  the  obligations  which  rest  upon  a  trustee,  or  make  him  free  from 
them,  by  reference  to  an  act  which  was  not  performed  until  a  future  day; 
and  the  retrospective  conversion  of  a  person  into  a  trustee  of  property  is 
a  result  eminently  inconvenient.  In  the  next  place,  the  argument  appears 
to  me  to  be  opposed  to  the  general  course  of  authority  and  principle.  Ac- 
cording to  the  view  which  I  conceive  to  be  true,  the  conversion  of  prop- 
erty, which  means  the  treating  it  as  belonging  to  somebody  else  before  it 
has  been  actually  transferred  to  that  other  person,  results  from  a  con- 
tract which  can  be  specifically  enforced ;  so  that  where  there  is  no  specific 
performance  of  contract  possible,  there  is  no  conversion.  It  flows  in  effect 
from  the  principle  of  equity  which  considers  that  done  which  ought  to  be 
done,  and  which  the  Court  can  compel  to  be  done,  and  it  extends  so  far 
hack  as  those  circumstances  exist,  and  no  farther.  In  other  words,  where 
there  is  a  contract  capable  of  being  specifically  enforced  as  from  the  date 
of  that  contract,  and  neither  earlier  nor  later,  the  property  comprised  in 
the  contract  is  deemed  to  belong  to  the  purchaser,  and  the  money  to  be 
paid  is  deemed  to  belong  to  the  vendor,  because  those  two  things  ought  to 
be  done;  but  here  there  is  no  obligation  to  do  them  at  any  earlier  date 
than  that  of  the  contract  constituted  by  the  exercise  of  the  option.  The 
conversion  cannot,  according  to  the  principle,  relate  back  to  an  earlier 
■date  than  the  contract  which  gives  rise  to  it.  I  refer  to  the  case  of 
Haynes  v,  Haynes,  1  Dr.  &  Sm.  426,  as  an  authority  for  that  general 
principle,  and  it  appears  to  be  important. 

Upon  that  general  principle,  then,  I  should  hold  that  the  argument  is 
untenable.  But,  then,  I  am  told  that  the  case  is  covered  by  authority, 
and  for  that  purpose  my  attention  is  very  properly  drawn  to  the  cases 
which  begin  with  Lawes  v.  Bennet,  1  Cox,  167,  and  which  shew  that 
where  there  is  a  contract  giving  an  option  to  purchase  real  estate,  and 
the  option  is  not  exercised  till  after  the  death  of  the  person  who  created 
the  option,  nevertheless  the  produce  of  the  sale  goes  as  part  of  his  per- 
sonal estate,  and  not  as  part  of  his  real  estate.  Now,  whether  Lawes  v. 
Bennet  is  or  is  not  consistent  with  the  general  principle  upon  which  con- 
version has  been  held  to  exist,  it  is  not  for  me  to  say.  It  is  enough  for 
me  to  say  that  the  case  has  been  followed  in  numerous  other  cases,  though 
it  has  been  observed  upon  by  more  than  one  Judge  as  somewhat  difficult 
of  explanation.  I  think  that  the  language  of  Lord  Eldon  in  Townley  v. 
Bedwell,  14  Ves.  591,  and  of  Vice-Chancellor  Kinderslf-y  in  Collingwood 
V.  Rew,  3  Jur.,  N.  S.,  785,  shews  that  they  were  not  satisfied  that  that  case 
was  consistent  with  the  general  principles  which  were  applicable  to  cases 
of  conversion ;  and  therefore,  although  I  should  implicitly  follow  Lawes  v. 
Bennet  in  a  case  between  the  real  and  personal  representatives  of  the 
person  who  granted  the  option,  I  do  not  think  that  I  am  at  liberty  to  ex- 
tend it  so  as  to  imply  that  there  is  conversion  from  the  date  of  the 
contract  giving  the  option  as  between  the  vendor  and  the  purchaser  who 


606  FLETCHER  v.  ASHBURNER  [part  k 

claim  under  it.  It  is  to  be  borne  in  mind  that  no  authority  can  be  pro- 
duced which  has  extended  the  doctrine  of  Lawes  v.  Bennet  in  the  slight- 
est degree  beyond  what  was  decided  in  that  case.  The  principle,  what- 
ever it  be,  has  never  been  applied  except  as  between  the  real  and  the 
personal  representatives  of  the  original  creator  of  the  option,  and  I  for 
one  shall  not  extend  it,  because  I  think  that  it  is  limited  by  the  general 
principle  to  which  I  have  adverted.  Therefore,  upon  that  ground,  I  hold 
that  there  is  no  conversion  of  the  estate  from  an  earlier  date  than  the 
28th  of  September,  when  the  notice  was  given.  The  fire  having  taken 
place,  and  the  insurance  money  having  been  received  at  an  earlier  date, 
the  intended  purchaser  has  no  right,  upon  the  general  principles  of  con- 
version, to  assert  a  title  to  that  money.' 


FLETCHER  v.  ASHBITRNER. 

In  Chancery  before  Sir  Thomas  Sewell,  M.  R.,  1779. 

[1  Brown's  Chancery  497.] 

John  Fletcher,  by  his  will,  devised  his  burgage  houses  and  free  rents 
in  Kendal,  and  all  his  personal  estate  to  trustees  and  the  survivor,  and 
the  heirs,  executors,  and  administrators  of  such  survivor,  in  trust,  to  sell 
so  much  as  should  be  sufficient  to  pay  his  debts,  and  then  to  permit  hi'5 
wife  Agnes  to  enjoy  the  residue  during  her  life,  if  she  so  long  continued 
his  chaste  widow ;  and  after  her  decease  to  sell  and  dispose  thereof,  and 
the  money  arising  thereby,  after  deducting  charges,  and  half  a  guinea 
each  to  the  trustees  for  their  trouble,  to  pay  to  and  between  his  son 
William  and  daughter  Mary,  share  and  share  alike;  provided  that  if  his 

^  For  further  cases  on  this  doctrine  in  its  relation  to  specific  performance 
see  Vol.   II,   Specific  Performance,   Section   3. 

Time  of  conversion  by  will.  "Whether  the  conversion  takes  place  at  the  death 
of  the  testator  or  at  some  later  period,  depends  upon  the  intention  of  the 
testator.  If  the  will,  in  terms,  provides  for  a  sale  at  a  specified  future  time, 
or  creates  a  trust  with  the  direction  to  sell  only  on  the  happening  of  a 
designatc<l  event,  which  might  or  might  not  happen,  then  the  conversion  takes 
place  in  its  occurrence,  otherwise  the  conversion  will  be  deemed  to  take 
place  as  of  the  date  of  testator's  death."  Per  Parker,  J.,  in  Mutual  Life 
Insurance  Co.  v.  Bailey,  1897,  19  N.  Y.  App.  Div.  204,  206. 

'In  the  will  under  consideration  a  power  to  sell,  mortgage  or  convey  any 
or  all  of  the  real  estate  is  given.  It  is  not  directed  or  commanded  to  be  done. 
It  is  left  entirely  discretionary  with  the  executor  or  trustee  whether  the  sale 
shall  be  made  or  not.  ...  It  follows  tliat  there  was  no  conversion  until  the 
executor  exercised  the  power  and  consummated  the  sale."  Per  Haight,  J.,  in 
Clift  V.  Moses,  1889,  IIG  N.  Y.  144,   158. 


CHAP,  v.]  FLETCHER, V.  ASITBURNER  60T 

wife  should  happen  to  marry  again,  the  trustees  should,  immediately 
after  the  marriage,  sell  all  the  estate  and  effects  given  to  her  for  her 
life,  and,  after  such  deductions  as  aforesaid,  should  pay  the  remainder 
of  the  money  to  and  amongst  his  wife,  his  son  William,  and  daughter 
Mary,  share  and  share  alike,  equally,  and  in  case  either  his  son  William 
or  his  daughter  Mary  should  die  before  his  or  their  legacy  should  become 
due,  that  the  share  or  legacy  of  him  or  her  so  dying  should  go  to  the 
survivor  of  them :  the  testator  died,  leaving  Agnes  his  widow,  William 
his  only  son  and  heir  at  law,  and  Mary  his  daughter;  Agnes,  by  the 
custom  of  burgage  tenure,  was  entitled  to  hold  the  burgage  houses  in 
Kendal  during  her  chaste  viduity,  against  the  disposition  of  her  husband 
by  will ;  Mary  attained  21,  but  died  unmarried  in  the  life  of  her  mother 
and  brother.  William  was  21  at  the  death  of  the  testator,  and  died 
without  issue  in  the  life  of  his  mother;  the  mother  died,  the  widow  of 
the  testator ;  upon  her  death  a  bill  was  filed  by  the  heir  at  law  of 
William  and  John  the  testator,  against  the  trustees  and  the  personal 
representatives  of  the  testator  and  of  the  widow,  to  have  a  conveyance 
of  the  real  estates  divised  by  the  will  to  the  plaintiff,  the  heir  at  law. 
The  representative  of  the  widow,  who  was  the  sole  next  of  kin  of 
William  the  son,  by  answer  claimed  the  property  as  personal;  alleging, 
that  by  the  direction  to  the  trustees  to  sell  the  real  estates  they  become 
as  personal  property,  and  as  such,  were  to  go  to  the  personal  rei^resenta- 
tive  of  William  the  son  who  survived  his  sister. 

The  cause  was  heard  the  11th  December,  1778,  where  the  first  objection 
taken  was,  that  the  personal  representative  of  William  was  not  before 
the  Court. 

But  the  Master  of  the  Rolls  was  of  opinion  there  were  sufiicient  parties 
to  sustain  the  question;  that  the  personal  representative  was  a  mere 
formal  party,  and  that,  if  he  thought  proper  to  make  a  decree,  a 
personal  representative  might  be  brought  before  the  Master. 

In  June  his  Honour  gave  his  opinion,  he  observed  that  nothing  was 
better  established  than  this  principle :  that  money  directed  to  be  em- 
ployed in  the  purchase  of  land,  and  land  directed  to  be  sold  and  turned 
into  money,  are  to  be  considered  as  that  species  of  property  into  which 
they  are  directed  to  be  converted ;  and  this  in  whatever  manner  the 
direction  is  given ;  whether  by  will,  by  way  of  contract,  marriage  articles, 
settlement,  or  otherwise,  and  whether  the  money  is  actually  deposited, 
or  only  covenanted  to  be  paid,  whether  the  land  is  actually  conveyed,  or 
only  agreed  to  be  conveyed.  The  owner  of  the  fund  or  the  contracting 
parties  may  make  land  money,  or  money  land.  The  cases  established  this 
rule  universally.  If  any  difficulty  has  arisen,  it  has  arisen  from  special 
circumstances.  In  the  case  of  Sweetapple  v.  Bindon,  2  Vern,  536,  it 
was  determined  that  a  husband  was  entitled  to  money  to  be  laid  out  in 
land,  as  tenant  by  the  courtesy,  and  although  it  is  held  that  a  wife  is 
not  entitled  to  dower  in  a  similar  case,  yet  it  is  allowed  that  it  is  so 
held  because  cases  have  been  determined,  and  not  from  any  principle. 


608  FLETCHER  v.  ASHBURNER  [part  i. 

The  cases  of  land  to  be  turned  into  money  are  fewer  than  those  of 
money  to  be  employed  in  the  purchase  of  land.  The  principle  cases 
have  been  where  real  estates  have  been  directed  to  be  sold  and  some  part 
of  the  disposition  has  failed;  so  that  something  has  resulted  to  the  heir 
at  law,  as  in  the  case  of  Emblyn  v.  Freeman,  Pre.  in  Cha.  541,  and  Cruse 
V.  Barley  and  Banson,  3  P.  Wms.  20.  These  are  all  cases  where  a  devise 
has  failed,  and  the  thing  devised  has  not  accrued  to  the  representative 
or  devisee,  but  to  the  heir  at  law  of  the  testator.  The  case  of  Durour  v. 
Motteux,  1  Ves.  320,  is  a  strong  case  to  the  point  now  before  the  Court; 
and  if  anything  could  strengthen  the  general  rule  the  circumstances  of 
the  present  case  would  do  so.  The  testator  has  blended  the  real  and 
personal  estate  together,  and  disposed  of  them,  without  distinction,  for 
the  benefit  of  his  wife  and  children.  Both  real  and  personal  estate  are 
made  one  fund.  In  the  case  of  Durour  v.  Motteux,  Lord  Hardwicke 
made  this  a  principal  ground  for  considering  the  whole  fund  as  personal 
estate:  in  the  present  case  it  might  be  uncertain,  till  the  death  of  the 
widow,  whether  the  estates  must  not  be  absolutely  sold :  both  the  children 
indeed  died  before  her;  but  she  might  have  married  before  the  death  of 
one  or  both.  The  interests  of  both  the  children  were  vested,  subject,  as 
to  one  of  them,  to  be  defeated  in  case  either  of  them  died  before  the 
mother.  There  could  be  no  election  to  take  the  fund  as  land  or  money; 
for  where  an  estate  is  directed  to  be  sold,  and  the  money  divided  amongst 
several  persons,  none  has  a  right  to  say  that  any  part  shall  not  be  sold; 
the  question  is  therefore  merely  between  the  real  and  personal  representa- 
tives of  the  son,  whether  the  personal  representative  shall  take  the  fund 
as  personal  property,  according  to  the  will,  or  the  heir  at  law  shall  take 
it  as  if  no  will  had  been  made.  The  case  of  Flanagan  v.  Flanagan,  is  a 
strong  authority  that  it  shall  be  taken  as  personal  estate,  according  to 
the  will.  In  that  case  the  testatrix,  Sarah  Wooley,  by  will,  dated  28th 
March,  1749,  gave  and  devised  all  her  real  and  personal  estates  to 
Francis  Plumtree,  in  trust,  in  the  first  place,  out  of  her  personal  estate, 
as  far  as  it  would  extend,  and  in  the  next  place,  by  sale  of  her  real 
estate,  or  a  sufficient  part  thereof,  to  raise  so  much  money  as  should  be 
sufficient  to  pay  her  debts  and  legacies;  and  after  payment  thereof,  in 
trust  to  convey  the  residue  of  the  real  estate,  which  should  remain  unsold, 
and  pay  the  produce  of  such  part  as  should  be  sold,  and  all  other  the 
residue  of  her  real  estates,  between  her  father  James  Flanagan  and  her 
brother  James  Flanagan,  their  heirs,  executors  and  administrators, 
equally.  A  bill  was  brought  by  the  creditors  for  sale  of  the  real  estate, 
to  supply  the  deficiency  of  the  personal  estate  for  payment  of  debts ;  and  a 
decree  was  made  for  a  sale;  and  if  any  of  the  money  to  arise  by  the 
sale  should  remain  after  payment  of  the  debts  and  legacies,  it  was 
directed  to  be  paid  to  James  Flanagan  the  father  and  James  Flanagan 
the  son,  ecjually ;  and  if  any  estate  should  remain  unsold,  the  trustees  were 
directed  to  convey  it  to  them  and  their  heirs,  equally:  after  the  decree 
James  Flanagan  the  son  died,  leaving  a  daughter,  and  a  son  born  after 


CHAP,  v.]  FLETCHER  v.  ASHBURNER  609 

his  death;  part  of  the  estate  was  sold,  and  afterwards  James  Flanagan 
the  grandfather  died,  leaving  his  grandson  his  heir,  and  his  grandson 
and  granddaughter  his  sole  next  of  kin:  after  the  death  of  the  grand- 
father a  further  part  of  the  estate  was  sold,  under  an  apprehension  that 
the  produce  of  the  first  sale  was  insufficient  to  pay  the  debts  and  legacies : 
it  appeared  however  that  the  produce  of  the  first  sale  was  sufficient.  A 
bill  was  afterwards  brought  by  the  son  of  James  Flanagan  the  son, 
claiming  a  moiety  of  the  surplus,  as  the  real  estate  of  James  Flanagan 
his  grandfather,  to  whom  he  was  become  heir,  against  the  personal  repre- 
sentative of  his  grandfather,  and  against  the  daughter  of  James  Flanagan 
the  son,  who  claimed  a  moiety  as  one  of  the  next  of  kin  of  her  grand- 
father. It  was  objected,  that  the  second  sale,  after  the  death  of  the 
grandfather,  was  improper.  The  Court  determined,  that  the  second 
sale,  actually  made  under  the  decree  of  the  Court,  before  the  Master, 
could  not  be  considered  as  improperly  made :  that  there  was  no  fraud,  no 
practice,  and  that  the  money  ought  to  go  to  the  personal  representative 
of  the  grandfather.  The  case  of  Digby  v.  Legard  is  a  different  question. 
There  the  testatrix  (Elizabeth  Byerley)  directed  her  real  estates  to  be 
sold  to  pay  debts  and  legacies,  and  gave  the  residue  to  five  persons,  to 
be  equally  divided  between  them,  one  of  whom  (Lady  Cay  ley)  died  in 
her  lifetime.  It  was  resolved  that  the  devise,  so  far,  failed  totally,  and 
should  accrue  to  the  heir  at  law.  The  language  of  the  decree  is  such  that 
the  benefit  of  the  devise  to  Lady  Cayley  should  accrue  to  the  testatrix's 
heir  at  law,  Mr.  Jorvoice,  who  was  a  lunatic,  and  should  be  paid  to  his 
committee,  as  real  estate  descended  to  him.  The  case  of  Scudamore  v. 
Scudamore,  Pre.  in  Cha.  543,  shews  that,  in  all  cases  where  the  dispute 
is  between  representatives,  the  heir  or  executor  shall  have  the  fund, 
according  to  the  will  or  contract  of  the  i)ersons  who  gave  or  created  it. 
There  was  a  case  of  Ogle  v.  Cook,  heard  19th  February,  1748,  which 
was  this :  Mr.  Ogle  made  his  will  in  1744,  and  gave  his  real  estate  to 
trustees  to  sell,  and  to  vest  the  money  in  stock,  and  pay  the  interest  to  his 
wife  during  her  widowhood,  and  after  her  death,  or  marriage,  to  his  two 
daughters  equally,  except  that  the  eldest  was  to  have  £1,000  more  than  the 
other:  he  gave  the  residue  of  his  personal  estate  in  the  same  way:  he 
afterwards  conveyed  the  real  estate  to  one  of  the  trustees  named  in  his 
will,  to  whom  he  was  considerably  indebted,  in  trust,  to  sell  so  much  as 
should  be  necessary  to  pay  the  debt,  and  as  to  the  residue,  in  trust,  for 
Mrs.  Ogle:  part  of  the  estate  was  sold,  and  then  Mr.  Ogle  died.  His 
youngest  daughter  died  in  his  lifetime.  The  bill  was  brought  by  the 
widow  and  the  eldest  daughter  against  the  son,  who  was  the  heir,  and 
the  trustees,  to  have  the  residue  of  the  estate  sold,  and  claiming  the 
share  of  the  youngest  daughter,  as  personal  estate  of  Mr.  Ogle,  to  be 
divided  between  them  and  the  son  as  his  next  of  kin.  The  son  insisted 
the  conveyance  to  the  trustee  was  a  revocation  of  the  will;  and,  if  not, 
that  the  share  of  the  dead  daughter  was  to  be  considered  as  real  estate  of 
Mr.  Ogle,  and  descended  to  him  as  heir.     It  was  determined  that  the 


610  FLETCHER  v.  ASHBURNER  [part  i. 

conveyance  was  a  revocation  only  pro  tanto,  to  let  in  the  debt;  and  that 
so  much  of  the  estate  as  remained  unsold  should  be  sold,  and  that  the 
money  raised  or  to  be  raised  by  sale  of  the  estate  made  part  of  the 
personal  estate  of  Mr.  Ogle.  There  was  another  case  about  the  same  time, 
which  is  in  1  Ves.  174.  Cunningham  v.  Moody,  where,  by  marriage 
articles,  £500  was  agreed  to  be  laid  out  in  purchase  of  lands,  to  be  settled 
to  the  use  of  the  husband  for  life,  with  remainder  to  trustees  to  preserve 
contingent  remainders,  with  remainder  to  the  wife  for  life,  with  re- 
mainder to  the  children  of  the  marriage,  as  the  husband  and  wife  should 
appoint;  and  in  default  of  a  joint  appointment  as  the  survivor  should 
appoint ;  and  in  default  of  any  appointment  to  the  children,  to  be  equally 
divided  among  them;  if  more  than  one,  as  tenants  in  common,  in  tail 
general,  with  cross  remainders;  and  if  but  one,  to  that  child  in  tail 
general,  and  no  appointment  was  made.  The  father  and  mother  being 
dead,  and  the  daughter  being  married,  the  trustees  paid  the  £500  to  her 
and  her  husband,  and  they  received  it  as  money,  and  executed  a  release. 
The  daughter  had  a  child  which  died,  and  she  afterwards  died  without 
issue.  A  daughter  of  the  settlor  by  a  second  marriage  filed  a  bill  against 
the  husband,  representative  of  his  wife,  the  daughter  by  the  first  mar- 
riage, for  the  £500,  considering  it  as  land;  and  it  was  observed  that  she 
was  entitled  to  the  money,  but  that  the  husband  of  her  deceased  sister 
was  entitled  to  the  interest  during  his  life,  as  tenant  by  the  courtesy. 
In  the  present  case,  William  Fletcher  the  son  had  the  whole  beneficial 
title  vested  in  him  as  money,  subject  to  his  mother's  interest  for  life  or 
widowhood.  She  was  his  sole  next  of  kin,  and  her  personal  representa- 
tives are  now  entitled  to  the  estate  as  money;  the  bill  must  therefore  be 
dismissed  without  costs.^ 

^In  Cruse  v.  Barley,  1727,  3  P.  Wms.  20,  one  Bauson  had  two  sons, 
Christopher  and  Cecil,  and  three  daughters.  He  devised  his  lands  to  be  sold 
to  pay  his  debts;  and  of  the  proceeds,  after  debts  paid,  he  gives  £200  to 
his  eldest  son,  Christopher,  at  twenty-one,  the  residue  to  his  four  younger 
children  equally.  Christopher  died  unmarried,  under  twenty-one.  The  debts 
of  tlie  testator  were  considerable  and  the  estate  small.  The  bill  was  brought 
by  the  creditors  against  Cecil,  the  only  surviving  son  and  heir  at  law  of  the 
testator,  to  prove  the  will  equity,  and  to  have  a  decree  for  the  sale  of  the 
estate.  "The  Master  of  the  Rolls  (Sir  Joseph  Jekyll)  ordered  precedents 
to  be  looked  into,  saying  he  would  consider  of  it;  and  at  length  declared  his 
opinion  that  the  £200  should  be  construed  as  land,  and  descend  to  the  heir; 
for  that  it  is  tlie  same  as  if  so  much  land  as  was  of  the  value  of  £200  was  not 
directed  to  be  sold,  but  suflfcrod  to  descend." 

To  this  case  Mr.  Cox  appended  the  following  note: 

"The  several  cases  on  this  subject  seem  to  depend  upon  this  question, 
whether  the  testator  meant  to  give  to  the  produce  of  the  real  estate  the  quality 
of  personalty  to  all  intents,  or  only  so  far  as  respected  the  particular  purposes 
of  the  will ;  for  unless  the  testator  has  siifficiently  declared  his  intention,  not 
only  that  the  realty  shall  be  converted  into  personalty  for  the  purposes  of 
the  will,  but,  further,  that  the  produce  of  the  real  estate  shall  be  taken  as 


CHAP,  v.]  CRAIG  v.  LESLIE  611 

CRAIG  V.  LESLIE. 

In  TfiE  Supreme  Court  of  the  TTxited  States,  1818. 

[3  Wheaton  563.] 

This  was  a  case  certified  from  the  circuit  court  for  the  district  of  Vir- 
ginia, in  which  the  opinions  of  the  judges  of  that  court  were  opposed  on 
the  following  question,  viz.  Whether  the  legacy  given  to  Thomas 
Craig,  an  alien,  in  the  will  of  Robert  Craig,  is  to  be  considered  as  a 
devise,  which  he  can  take  only  for  the  benefit  of  the  commonwealth,  and 
cannot  hold ;  or  a  bequest  of  a  personal  chattel,  which  he  could  take  for 
his  own  benefit? 

This  question  grows  out  of  the  will  of  Robert  Craig,  a  citizen  of 
Virginia,  and  arose  in  a  suit  brought  on  the  equity  side  of  the  circuit 
court  for  the  district  of  Virginia,  by  Thomas  Craig,  against  the  trustees 
named  in  the  will  of  said  Robert  Craig,  to  compel  the  said  trustee  to 
execute  the  trusts,  by  selling  the  trust  fund,  and  paying  over  the  proceeds 
of  the  same  to  the  complainant. 

The  clause  in  the  will  of  Robert  Craig,  upon  which  the  question 
arises,  is  expressed  in  the  following  terms,  viz.     *'  In  the  first  place,  I 

personalty,  whether  such  purposes  take  effect  or  not,  so  much  of  the  real  estate, 
or  the  produce  thereof,  as  is  not  effectually  disposed  of  by  the  will  at  the  time 
of  the  testator's  death  (whether  from  the  silence  or  the  inefficacy  of  the  will 
itself  or  from  subsequent  lapse)  will  resvilt  to  the  heir.  Randall  y.Bookey,  Pre. 
Cha.  162;  Emblyn  v.  Freeman,  Pre.  Cha.  541;  Cruse  v.  Barley,  sup.  Stonehouse 
V.  Evelyn,  post.  252;  Arnold  v.  Chapman,  1  Ves.  108;  Digby  v.  Legard,  before 
Lord  Bathurst,  Trin.  Term,  1774,  where  E.  B.  devised  her  real  and  personal 
estate  to  trustees  in  trust  to  sell,  to  pay  debts  and  legacies,  and  to  pay  the  residue 
to  five  persons,  to  be  equally  divided  between  them,  share  and  share  alike.  One  of 
the  residuary  legatees  died  in  the  lifetime  of  testatrix.  The  Court  at  the 
hearing,  and  afterwards  upon  a  rehearing,  held  that  this  was  a  resulting  trust, 
as  to  the  share  in  the  real  estate  of  the  residuary  legatee  who  died  in  the 
testatrix's  lifetime,  for  the  benefit  of  the  heir  at  law.  Reg.  Lib.  A.,  1773,  fol. 
495,  and  1774,  fol.  325;  Akroyd  v.  Smithson,  before  Lord  Thurlow,  March  4, 
1780.  Christopher  Holdsworth,  by  will,  gave  several  pecuniary  legacies,  and 
then  devised  all  his  real  and  personal  estate  to  trustees  in  trust  to  sell  the 
same  and  to  convert  the  same  and  every  part  thereof  into  ready  money,  and 
out  of  the  produce  to  pay  his  debts  and  the  above-mentioned  legacies,  and 
to  pay  the  surplus,  if  any,  unto  the  said  several  legatees  in  proportion  to  their 
respective  legacies.  Two  of  the  legatees  died  in  the  lifetime  of  the  testator. 
Lord  Chancellor  approved  of  the  case  of  Digby  v.  Legard,  and  declared 
that  the  shares  in  the  real  estate  of  the  two  residuary  legatees  who  died 
in  the  testator's  lifetime  resulted  to  the  heir  at  law.  Reg.  Lib.  A,  1779, 
fol.  6G8,  and  1  Bro.  Ch.  Rep.  503;  S.  C.  Robinson  r.  Taylor,  2  Bro.  Cha. 
Rep.  589;  Spink  v.  Lewis,  3  Bro.  Cha.  Rep.  355.  The  only  case  which  appears 
inconsistent  with  these  decisions  is  that  of  Ogle  i'.  Cook,  cited,  1  Bro.  Cha. 
Rep.  501.    In  the  cases  bf  Mallabar  v.  Mallabar,  Ca.  temp.  Tal.  79,  and  Durour 


C12  CRAIG  V.  LESLIE  [part  i. 

give,  devise,  and  bequeath  unto  John  Leslie,"  and  four  others,  "  all  my 
estate,  real  and  personal,  of  which  I  may  die  seized  or  possessed,  in  any 
l^art  of  America,  in  special  trust,  that  the  afore-mentioned  persons,  or 
such  of  them  as  may  be  living  at  my  death,  will  sell  my  personal  estate 
to  the  highest  bidder,  on  two  years  credit,  and  my  real  estate  on  one,  two, 
and  three  years  credit,  provided  satisfactory  security  be  given,  by  bond 
and  deed  of  trust.  In  the  second  place,  I  give  and  bequeath  to  my 
brother,  Thomas  Craig,  of  Beith  parish,  Ayrshire,  Scotland,  all  the 
proceeds  of  my  estate,  both  real  and  personal,  which  I  have  herein 
directed  to  be  sold,  to  be  remitted  unto  him  accordingly  as  the  payments 
are  made,  and  I  hereby  declare  the  aforesaid  John  Leslie,"  and  the  four 
other  persons,  "  to  be  my  trustees  and  executors  for  the  purposes  afore- 
mentioned." 

The  attorney-general  of  Virginia,  on  behalf  of  that  State,  filed  a  cross 
bill  against  the  plaintiff  in  the  original  suit,  and  the  trustee ;  the  prayer 
of  which  is  to  compel  the  trustee  to  sell  the  trust  estate,  so  far  as  it  con- 
sists of  real  estate,  and  to  appropriate  the  proceeds  to  the  use  of  the  said 
commonwealth,  by  paying  the  same  into  its  public  treasury. 

The  will  of  Robert  Craig  was  proved  in  June,  1811,  and  the  present 
suit  was  instituted  some  time  in  the  year  1815. 

Mr.  Justice  Washington  delivered  the  opinion  of  the  court.     The  in- 

V.  Motteux,  1  Ves.  .320,  the  question  was  between  the  heir  at  law  and 
the  residuary  legatee  of  the  personal  estate,  and  not  the  next  of  kin,  and  in 
those  cases  the  Court  was  of  opinion  that  upon  the  construction  of  the  will 
the  real  estate  was  converted  into  personalty  for  all  the  purposes  of  the  will, 
including  the  residuary  bequest.  These  cases  consequently  do  not  de-cide  the 
question,  which  would  have  arisen  if  there  had  been  no  residuary  disposition, 
or  if  such  residuary  disposition  had  been  confined  to  what  was  personalty  at 
the  testator's  death.  But  notwithstanding  that  such  interest  results  to  the 
heir,  as  being  part  of  the  prodvice  of  the  real  estate  undisposed  of,  it  may  yet 
be  personal  estate  of  the  heir  and  pass  as  such  by  a  residuary  bequest. 
Hewitt  V.  Wright,  1  Bro.  Cha.  Rep.  90.  Another  branch  of  eases  are  those 
in  which  the  question  has  arisen  between  the  real  and  personal  representatives 
of  devisees  under  wills  of  the  nature  above  mentioned.  Vide  Scudaniore  v. 
Scudamore,  Pre.  Cha.  543;  Flanagan  v.  Flanagan,  cited,  1  Bro.  Cha.  Rep.  51.3; 
rictehcr  v.  Ash  burner,  1   Bro.  Cha.  Ca.  497." 

In  Hereford  v.  Ravenhill,  1839,  1  Beav.  481,  a  testator  directed  his  trustees 
to  iiivcst  his  personal  estate  as  soon  after  his  death  as  a  convenient  pur- 
chaser could  be  found,  in  real  estate,  and  settle  it  according  to  certain 
limitations.  These  inclinations  having  become  exhausted  before  the  personal 
estate  had  been  invested,  the  question  arose  as  to  whom  the  fund  belonged. 
The  heir  at  law  had  not  been  made  a  party.  Lord  Langdale,  Master  of  the 
Rolls,  said  "lie  was  of  opinion  that  the  heir  at  law  was  not  a  necessary  party, 
because  it  bad  licen  decided  in  the  case  referred  to  that  where  a  testator 
directed  his  personal  estate  to  be  converted  into  real  estate  for  several  purposes, 
some  of  wbicli  failed,  his  lieir  was  not,  after  satisfying  the  purposes  which 
could  take  efTect,  entitled  to  the  personalty  as  being  impressed  with  the 
character  of  real  estate." 


CHAP,  v.]  CEAIG  v.  LESLIE  613 

capacity  of  an  alien  to  take,  and  to  hold  beneficially,  a  legal  or  equitable 
estate  in  real  property,  is  not  disputed  by  the  counsel  for  the  plaintiff; 
and  it  is  admitted  by  the  counsel  for  the  State  of  Virginia,  that  this 
incapacity  does  not  extend  to  personal  estate.  The  only  inquiry,  then, 
which  this  court  has  to  make  is,  whether  the  above  clause  in  the  will 
of  Robert  Craig  is  to  be  construed,  under  all  the  circumstances  of  this 
case,  as  a  bequest  to  Thomas  Craig  of  personal  property,  or  as  a  devise  of 
the  land  itself? 

Were  this  a  new  question,  it  would  seem  extremely  difficult  to  raise  a 
doubt  respecting  it.  The  common  sense  of  mankind  would  determine, 
that  a  devise  of  money,  the  proceeds  of  land  directed  to  be  sold,  is  a  devise 
of  money,  notwithstanding  it  is  to  arise  out  of  land ;  and  that  a  devise  o£ 
land,  which  a  testator  by  his  will  directs  to  be  purchased,  will  pass  an 
interest  in  the  land  itself,  without  regard  to  the  character  of  the  fund 
out  of  which  the  purchase  is  to  be  made. 

The  settled  doctrine  of  the  courts  of  equity  correspond  with  this 
obvious  construction  of  wills,  as  well  as  of  other  instruments,  whereby 
land  is  directed  to  be  turned  into  money,  or  money  into  land,  for  the 
benefit  of  those  for  whose  use  the  conversion  is  intended  to  be  made.  In 
the  case  of  Fletcher  v.  Ashburner,  1  Bro.  Ch.  Cas.  497,  the  master  of  the 
rolls  says,  that  "  nothing  is  better  established  than  this  principle,  that 
money  directed  to  be  employed  in  the  purchase  of  land,  and  land  directed 
to  be  sold  and  turned  into  money,  are  to  be  considered  as  that  species 
of  property  into  which  they  are  directed  to  be  converted,  and  this,  in 
whatever  manner  the  direction  is  given."  He  adds,  "the  owner  of  the 
fund,  or  the  contracting  parties,  may  make  land  money,  or  money  land. 
The  cases  establish  this  rule  universally."  This  declaration  is  well  war- 
ranted by  the  cases  to  which  the  master  of  the  rolls  refers,  as  well  as  by 
many  others.  See  Dougherty  v.  Bull,  2  P.  Wms.  320;^  Yeates  v.  Comp- 
ton,  id.  358 ;  Trelawney  v.  Booth,  2  Atk.  307. 

The  principle  upon  which  the  whole  of  this  doctrine  is  founded  is, 
that  a  court  of  equity,  regarding  the  substance,  and  not  the  mere  forms 

*  "This  case  is  entirely  covered  by  the  decision  in  Dovigherty  v.  Bull, 
2  P.  Wms.  320.  There  the  testator  devised  lands  to  trustees  in  fee,  in  trust 
to  apply  the  profits  until  sale  for  the  benefit  of  all  his  four  children  and 
the  survivors  and  survivor  of  them  equally,  and  on  further  trust  as  soon 
as  the  trustees  should  see  necessary  for  the  benefit  of  the  children,  they 
should  sell  the  premises  and  apply  the  money  for  the  benefit  of  his  four 
children  equally,  to  be  paid  at  twenty-one  or  marriage.  A,  the  eldest  of  the 
four  children,  attained  twenty-one  and  married,  and  died  without  issue,  iii- 
testate,  leaving  a  wife.  The  Lord  Chancellor  (Lord  King),  confirming  the 
decision  of  the  Master  of  the  Rolls,  decreed  that  the  land,  being  in  all  events 
devised  to  be  sold,  though  the  time  for  sale  was  left  to  the  executors,  was 
personal  estate,  and  A's  widow  must  have  a  moiety  of  A's  share:  and  the 
profits  of  the  land  until  sale  must  go  as  the  money  arising  upon  sale  would. 
In  this  case  the  words  are  in  all  respects  similar  to  those  in  Dougherty  o. 
Bull."'     Per  Pearson,^  J.,  in  Morris  v.  Griffiths,  1884,  L.  R.  26  Ch.  Div.  COL 


614  CKAIG  V.  LESLIE  [part  i. 

and  circumstances  of  agreements  and  other  instruments,  considers 
things  directed  or  agreed  to  be  done,  as  having  been  actually  performed, 
where  nothing  has  Intervened  which  ought  to  prevent  a  performance. 
This  qualification  of  the  more  concise  and  general  rule,  that  equity  con- 
siders that  to  be  done  which  is  agreed  to  be  done,  will  comprehend  the 
cases  which  come  under  this  head  of  equity. 

Thus,  where  the  whole  beneficial  interest  in  the  money  in  the  one  case, 
or  in  the  land  in  the  other,  belongs  to  the  person  for  whose  use  it  is  given, 
a  court  of  equity  will  not  compel  the  trustee  to  execute  the  trust 
against  the  wishes  of  the  cestui  que  trust,  but  will  permit  him 
to  take  the  money  or  the  land,  if  he  elect  to  do  so  before  the  conversion 
has  actually  been  made;  and  this  election  he  may  make,  as  well  by  acts 
or  declarations,  clearly  indicating  a  determination  to  that  effect,  as  by 
application  to  a  court  of  equity.  It  is  this  election,  and  not  the  mere 
right  to  make  it,  which  changes  the  character  of  the  estate  so  as  to 
m.ake  it  real  or  personal,  at  the  will  of  the  party  entitled  to  the  bene- 
ficial interest. 

If  this  election  be  not  made  in  time  to  stamp  the  property  with  a 
character  different  from  that  which  the  will  or  other  instrument  gives  it, 
the  latter  accompanies  it,  with  all  its  legal  consequences,  into  the  hands  of 
those  entitled  to  it  in  that  character.  So  that  in  case  of  the  death  of  the 
cestui  que  trust,  without  having  determined  his  election,  the  property 
will  pass  to  his  heirs  or  personal  representatives,  in  the  same  manner  as  it 
would  have  done  had  the  trust  been  executed,  and  the  conversion  actually 
made  in  his  lifetime. 

In  the  case  of  Kirkman  v.  Mills,  13  Yes.,  which  was  a  devise  of  real 
estate  to  trustees  upon  trust  to  sell,  and  the  moneys  arising,  as  well  as 
the  rents  and  profits  till  the  sale,  to  be  equally  divided  between  the 
testator's  three  daughters,  A.  B.  and  C.  The  estate  was,  upon  the  death 
of  A.  B.  and  C,  considered  and  treated  as  personal  property,  notwith- 
standing the  cestui  que  trusts,  after  the  death  of  the  testator,  had  entered 
upon,  and  occupied  the  land  for  about  two  years  prior  to  their  deaths; 
but  no  steps  had  been  taken  by  them,  or  by  the  trustees,  to  sell,  nor  had 
any  requisition  to  that  effect  been  made  by  the  former  to  the  latter.  The 
master  of  the  rolls  was  of  opinion,  that  the  occupation  of  the  land  for  two 
years  was  too  short  to  presume  an  election.  He  adds,  "the  opinion  of 
Lord  RossLYN,  that  property  was  to  be  taken  as  it  happened  to  be  at  the 
death  of  the  party  from  whom  the  representative  claims,  had  been 
much  doubted  by  Lord  Eldon,  who  held,  that  without  some  act,  it  must 
be  considered  as  being  in  the  state  in  which  it  ought  to  be;  and  that  Lord 
Rosslyn's  rule  was  new,  and  not  according  to  the  prior  cases." 

The  same  doctrine  is  laid  down  and  maintained  in  the  case  of  Ed- 
wards V.  The  Countess  of  Warwick,  2  P.  Wms.  171,  which  was  a  cov- 
enant on  marriage  to  invest  £10,000,  part  of  the  lady's  fortune,  in  the 
purchase  of  land  in  fee,  to  be  settled  on  the  husband  for  life,  remainder 
to    his    first    and    every    other    son    in    tail    male,    remainder    to    the 


CHAP,  v.]  CRAIG  V.  LESLIE  615 

husband  in  fee.  The  only  son  of  this  marriage  having  died  without 
issue,  and  intestate,  and  the  investment  of  the  money  not  having  been 
made  during  his  life,  the  chancellor  decided  that  the  money  passed  to 
the  heir  at  law;  that  it  was  in  the  election  of  the  son  to  have  made  this 
money,  or  to  have  disposed  of  it  as  such,  and  that,  therefore,  even  his 
parol  disposition  of  it  would  have  been  regarded;  but  that  something  to 
determine  the  election  must  be  done. 

This  doctrine,  so  well  established  by  the  cases  which  have  been  referred 
to,  and  by  many  others  which  it  is  unnecessary  to  mention,  seems  to  be 
conclusive  upon  the  question  which  this  court  is  called  upon  to  decide, 
and  would  render  any  farther  investigation  of  it  useless,  were  it  not  for 
the  case  of  Roper  v.  Radcliffe,  which  was  cited,  and  mainly  relied  upon, 
by  the  counsel  for  the  State  of  Virginia. 

The  short  statement  of  that  case  is  as  follows :  John  Roper  con- 
veyed all  his  lands  to  trustees  and  their  heirs,  in  trust,  to  sell  the  same, 
and  out  of  the  proceeds,  and  of  the  rents  and  profits  till  sale,  to  pay 
certain  debts,  and  the  overplus  of  the  money  to  be  paid  as  he,  the  said 
John  Roper,  by  his  will  or  otherwise  should  appoint,  and  for  want  of  such 
appointment,  for  the  benefit  of  the  said  John  Roper,  and  his  heirs.  By 
his  will  reciting  the  said  deed,  and  the  power  reserved  to  him  in  the 
surplus  of  the  said  real  estate,  he  bequeathed  several  pecuniary  legacies, 
and  then  gave  the  residue  of  his  real  and  personal  estate  to  William  Con- 
stable and  Thomas  Radcliffe,  and  two  others,  and  to  their  heirs.  By  a 
codicil  to  this  will,  he  bequeathed  other  pecuniary  legacies;  and  the 
remainder,  whether  in  lands  or  personal  estate,  he  gave  to  the  said  W.  C. 
and  T.  R. 

Upon  a  bill  filed  by  W.  C.  and  T.  R.  against  the  heir  at  law  of  John 
Hoper,  and  the  other  trustees,  praying  to  have  the  trust  executed,  and 
the  residue  of  the  money  arising  from  the  sale  of  the  lands  to  be  paid 
over  to  them ;  the  heir  at  law  opposed  the  execution  of  the  trust,  and 
claimed  the  land  as  a  resulting  trust,  upon  the  ground  of  the  incapacity 
of  Constable  and  Radcliffe  to  take,  they  being  papists.  The  decree  of  the 
court  of  chancery,  which  was  in  favour  of  the  papists,  was,  upon  appeal 
to  the  House  of  Lords,  reversed,  and  the  title  of  the  heir  at  law  sustained ; 
six  judges  against  five,  being  in  his  favour. 

Without  stating  at  large  the  opinion  upon  which  the  reversal  took 
place,  this  court  will  proceed,  1.  To  examine  the  general  principles  laid 
down  in  that  opinion;  and  then.  2.  The  case  itself,  so  far  as  it  has 
been  pressed  upon  us  as  an  authority  to  rule  the  question  before  the 
court. 

In  performing  the  first  part  of  this  undertaking,  it  will  not  be 
necessary  to  question  any  one  of  the  premises  laid  down  in  that  opin- 
ion. They  are,  1.  That  land  devised  to  trustees,  to  sell  for  payment  of 
debts  and  legacies,  is  to  be  deemed  as  money.  This  is  the  general  doc- 
trine established  by  all  the  cases  referred  to  in  the  preceding  part  of  this 
opinion.  2.  That  the  heir  at  law  has  a  resulting  trust  in  such  land,  so 
far  as  it  is  of  value,  after  the  debts  and  legacies  are  paid,  and  that  he 


616  CRAIG  V.  LESLIE  [part  i. 

may  come  into  equity  and  restrain  the  trustee  from  selling  more  than 
is  necessary  to  pay  the  debt  and  legacies;  or  he  may  offer  to  pay  them 
himself,  and  pray  to  have  a  conveyance  of  the  part  of  the  land  not  sold 
in  the  first  case,  and  the  whole  in  the  latter,  which  property  will,  in  either 
case,  be  land,  and  not  money.  This  right  to  call  for  a  conveyance  is  very 
correctly  styled  a  privilege,  and  it  is  one  which  a  court  of  equity  will 
never  refuse,  unless  there  are  strong  reasons  for  refusing  it.  The  whole 
of  this  doctrine  proceeds  upon  a  principle  which  is  incontrovertible,  that 
"where  the  testator  merely  directs  the  real  estate  to  be  converted  into 
money,  for  the  purposes  directed  in  his  will,  so  much  of  the  estate,  or 
the  money  arising  from  it,  as  is  not  effectually  disposed  of  by  the  will, 
(whether  it  arise  from  some  omission  or  defect  in  the  will  itself,  or 
from  any  subsequent  accident,  which  prevents  the  devise  from  taking 
effect)  results  to  the  heir  at  law,  as  the  old  use  not  disposed  of. 
Such  was  the  case  of  Crewe  v.  Bailey,  3  P.  Wms.  20,  where  the 
testator  having  two  sons,  A.  and  B.,  and  three  daughters,  devised  his 
lands  to  be  sold  to  pay  his  debts,  etc.,  and  as  to  the  moneys  arising  by  the 
sale,  after  debts  paid,  gave  £200  to  A.  the  eldest  son,  at  the  age  of 
21,  and  the  residue  to  his  four  younger  children.  A.  died  before  the  age 
of  21,  in  consequence  of  which  the  bequest  to  him  failed  to  take  effect. 
The  court  decided  that  the  £200  should  be  considered  as  land  to  descend 
to  the  heir  at  law  of  the  testator,  because  it  was,  in  effect,  the  same 
as  if  so  much  land  as  was  of  the  value  of  £200  was  not  directed  to  be  sold, 
but  was  suffered  to  descend.  The  case  of  Ackroyd  v.  Smithson,  1  Bro. 
Ch.  Cas.  503,  is  one  of  the  same  kind,  and  establishes  the  same  principle. 
So,  likewise,  a  money  provision  under  a  marriage  contract,  to  arise  out  of 
land,  which  did  not  take  effect,  on  account  of  the  death  of  the  party  for 
whose  benefit  it  was  intended,  before  the  time  prescribed,  resulted  as 
money  to  the  grantor,  so  as  to  pass  under  a  residuary  clause  in  his 
will.    Hewitt  v.  Wright.  1  Bro.  Ch.  Cas.  86. 

But  even  in  cases  of  resulting  trusts,  for  the  benefit  of  the  heir  at 
law,  it  is  settled  that  if  the  intent  of  the  testator  appears  to  have  been  to 
stamp  upon  the  proceeds  of  the  land  described  to  be  sold,  the  quality  of 
personalty,  not  only  to  subserve  the  particular  purposes  of  the  will,  but 
to  all  intents,  the  claim  of  the  heir  at  law  to  a  resulting  trust  is  de- 
feated, and  the  estate  is  considered  to  be  personal.  This  was  decided 
in  the  case  of  Yeates  v.  Compton,  2  P.  Wms.  30,  in  which  the  chan- 
cellor says,  that  the  intention  of  the  will  was  to  give  away  all  from 
the  heir,  and  to  tuim  the  land  into  personal  estate,  and  that  this  was 
to  be  taken  as  it  was  at  the  testator's  death,  and  ought  not  to  be  altei-ed 
by  any  subsequent  accident,  and  decreed  the  heir  to  join  in  the  sale  of  the 
land,  and  the  money  arising  therefrom  to  be  paid  over  as  personal  estate 
to  the  representatives  of  the  annuitant,  and  to  those  of  the  residuary 
legatee.  In  the  case  of  Fletcher  v.  Ashburner,  before  referred  to,  the 
suit  was  brought  by  the  heir  at  law  of  the  testator,  against  the  personal 
representatives  and  the  trustees  claiming  the  estate  upon  the  ground 
of  a  resulting  trust.    But  the  court  decreed  the  property,  as  money,  to 


CHAP,  v.]  CEAIG  V.  LESLIE  617 

the  personal  representatives  of  him  to  whom  the  heneficial  interest  in  the 
money  was  bequeathed,  and  the  master  of  the  rolls  observes,  that  the 
cases  of  Emblyn  v.  Freeman,  and  Crewe  v.  Bailey,  are  those  where  real 
estate  being  directed  to  be  sold,  some  part  of  the  disposition  has  failed, 
and  the  thing  devised  has  not  accrued  to  the  representative,  or  devisee, 
by  which  something  has  resulted  to  the  heir  at  law. 

It  is  evident,  therefore,  from  a  view  of  the  above  cases,  that  the  title 
of  the  heir  to  a  resulting  trust  can  never  arise,  except  when  something 
is  left  undisposed  of,  either  by  some  defect  in  the  will,  or  by  some  sub- 
sequent lapse,  which  prevents  the  devise  from  taking  effect;  and  not 
even  then,  if  it  appears  that  the  intention  of  the  testator  was  to  change 
the  nature  of  the  estate  from  land  to  money,  absolutely  and  entirely,  and 
not  merely  to  serve  the  purposes  of  the  will.  But  the  ground  upon 
which  the  title  of  the  heir  rests  is,  that  whatever  is  not  disposed  of 
remains  to  him,  and  partakes  of  the  old  use,  as  if  it  had  not  been 
directed  to  be  sold. 

The  third  proposition  laid  down  in  the  case  of  Roper  v.  Radcliffe, 
is,  that  equity  will  extend  the  same  privilege  to  the  residuary  legatee 
which  is  allowed  to  the  heir,  to  pay  the  debts  and  legacies,  and  call 
for  a  conveyance  of  the  real  estate,  or  to  restrain  the  trustees  from, 
selling  more  than  is  necessary  to  pay  the  debts  and  legacies. 

This  has,  in  effect,  been  admitted  in  the  preceeding  part  of  this  opin- 
ion; because,  if  the  cestui  que  trust,  of  the  whole  beneficial  interest  in 
the  money  to  arise  from  the  sale  of  the  land,  may  claim  this  privilege, 
it  follows,  necessarily,  that  the  residuary  legatee  may,  because  he  is,  in 
effect,  the  beneficial  owner  of  the  whole,  charged  with  the  debts  and 
legacies,  from  which  he  will  be  permitted  to  discharge  it,  by  paying  the 
debts  and  legacies,  or  may  claim  so  much  of  the  real  estate  as  may  not 
be  necessary  for  that  purpose. 

But  the  court  cannot  accede  to  the  conclusion,  which  in  Roper  v. 
Radcliffe,  is  deduced  from  the  establishment  of  the  above  principles. 
That  conclusion  is,  that  in  respect  to  the  residuary  legatee,  such  a 
devise  shall  be  deemed  as  land  in  equity,  though  in  respect  to  the  credi- 
tors and  specific  legatees  it  is  deemed  as  money.  It  is  admitted,  with  this 
qualification,  that,  if  the  residuary  legatee  thinks  proper  to  avail  him- 
self of  the  privilege  of  taking  it  as  land,  by  making  an  election  in  his 
lifetime,  the  property  will  then  assume  the  character  of  land.  But  if  he 
does  not  make  this  election,  the  property  retains  its  character  of  person- 
alty to  every  intent  and  purpose.  The  cases  before  cited  seem  to  the 
court  to  be  conclusive  upon  this  point;  and  none  were  referred  to,  or 
have  come  under  the  view  of  the  court,  which  sanction  the  conclusion 
made  in  the  unqualified  terms  used  in  the  case  of  Roper  r.  Radcliffe. 

As  to  the  idea  that  the  character  of  the  estate  is  affected  by  this 
right  of  election,  whether  the  right  be  claimed  or  not,  it  appears  to  be  as 
repugnant  to  reason,  as  we  thinl?  it  has  been  shown  to  be,  to  principle 
and    authorities.     Before    anything   can   be    made    of   the    proposition. 


618  CRAIG  V.  LESLIE  [part  i. 

it  should  be  shown  that  this  right  or  privilege  of  election  is  so  indissolu- 
bly  united  with  the  devise,  as  to  constitute  a  part  of  it,  and  that  it  may- 
be exercised  in  all  cases,  and  under  all  circumstances.  This  was,  in- 
deed, contended  for  with  great  ingenuity  and  abilities  by  the  coun- 
sel for  the  state  of  Virginia,  but  it  was  not  proved  to  the  satisfaction  of 
the  court. 

It  certainly  is  not  true,  that  equity  will  extend  this  privilege  in  all 
cases  to  the  cestui  que  trust.  It  will  be  refused  if  he  be  an  infant. 
In  the  case  of  Seeley  v.  Jago,  1  P.  Wms.  389,  where  money  was  de- 
vised to  be  laid  out  in  land  in  fee,  to  be  settled  on  A.  B.  and  C,  and 
their  heirs,  equally  to  be  divided.  On  the  death  of  A.,  his  infant  heir, 
together  with  B.  and  C,  filed  their  bill  claiming  to  have  the  money, 
which  was  decreed  accordingly  as  to  B.  and  C. ;  but  the  share  of  the 
infant  was  ordered  to  be  put  out  for  his  benefit;  and  the  reason  as- 
signed was,  that  he  was  incapable  of  making  an  election,  and  that  such 
election,  if  permitted,  would,  in  case  of  his  death,  be  prejudicial  to  his 
heir. 

In  the  case  of  Foone  v.  Blount,  Cowp.  467,  Lord  Mansfield,  who 
is  compelled  to  acknowledge  the  authority  of  Roper  v.  Radcliffe  in  par- 
allel cases,  combats  the  reasoning  of  Chief  Justice  Parker  upon  this 
doctrine  of  election,  with  irresistible  force.  He  suggests,  as  the  true 
answer  to  it,  that  though  in  a  variety  of  cases  this  right  exists,  yet  it 
was  inapplicable  to  (he  case  of  a  person  who  was  disabled  by  law  from 
taking  land,  and  that  therefore  a  court  of  equity  would,  in  such  a  case, 
decree  that  he  should  take  the  property  as  money. 

The  case  of  Walker  v.  Denne,  (2  Ves.  Jun.  170.)  seems  to  apply 
with  great  force  to  this  part  of  our  subject.  The  testator  directed  money 
to  be  laid  out  in  lands,  tenements,  and  hereditaments,  or  on  long  terms, 
with  limitations  applicable  to  real  estate.  The  money  not  having  been 
laid  out,  the  crov;n,  on  failure  of  heirs,  claimed  the  money  as  land.  It 
was  decided  that  the  crown  had  no  equity  against  the  next  of  kin  to 
have  the  money  laid  out  in  real  estate  in  order  to  claim  it  by  escheat. 
It  was  added,  that  the  devisees,  on  becoming  absolutely  entitled,  have 
the  option  given  by  the  will;  and  a  deed  of  appointment  by  one  of  the 
cestui  que  trusts,  though  a  feme  covert,  was  held  a  sufficient  indication 
of  her  intention  that  it  should  continue  personal,  against  her  heir 
claiming  it  as  ineffectually  disposed  of  for  want  of  her  examination. 
This  case  is  peculiarly  strong,  from  the  circumstance,  that  the  election 
is  embodied  in  the  devise  itself;  but  this  was  not  enough,  because  the 
crown  had  no  equity  to  force  an  election  to  be  made  for  the  purpose  of 
producing  an  escheat. 

Equity  would  surely  proceed  contrary  to  its  regular  course,  and  the 
principles  which  universally  govern  it,  to  allow  the  right  of  election 
where  it  is  desired,  and  can  be  lawfully  made,  and  yet  refuse  to  decree 
the  money  ui)on  the  application  of  the  alien,  upon  no  other  reason,  but 
because,  by  law,  lie  is  incapable  to  hold  the  land:     In  short,  to  consider 


CHAP,  v.]  CKAIG  V.  LESLIE  619 

him  in  the  same  situation  as  if  he  had  made  an  election,  which  would 
have  been  refused  had  he  asked  for  a  conveyance.  The  more  just  and 
correct  rule  would  seem  to  be,  that  where  the  cestui  que  trust  is  in- 
capable to  take  or  to  hold  the  land  beneficially,  the  right  of  election 
does  not  exist,  and,  consequently,  that  the  property  is  to  be  considered  as 
being  of  that  species  into  which  it  is  directed  to  be  converted. 

Having  made  these  observations  upon  the  principles  laid  down  in  the 
case  of  Koper  v.  Radcliffe,  and  upon  the  arguments  urged  at  the  bar  in 
support  of  them,  very  few  words  will  suffice  to  show  that,  as  an  authority, 
it  is  inapplicable  to  this  case. 

The  incapacities  of  a  papist  under  the  English  statute  of  11  and  12 
Wm.  III.  c.  4,  and  of  an  alien  at  common  law,  are  extremely  dissimilar. 
The  former  is  incapable  to  take  by  purchase,  any  lands,  or  profits  out  of 
lands;  and  all  estates,  terms,  and  any  other  interests  or  profits  whatso- 
ever out  of  lands,  to  be  made,  suffered,  or  done,  to,  or  for  the  use  of  such 
person,  or  upon  any  trust  for  him,  or  to,  or  for  the  benefit,  or  relief 
•of  any  such  person,  are  declared  by  the  statute  to  be  utterly  void. 

Thus,  it  appears  that  he  cannot  even  take.  His  incapacity  is  not  con- 
fined to  land,  but  to  any  profit,  interest,  benefit,  or  relief,  in  or  out  of  it. 
He  is  not  only  disabled  from  taking  or  having  the  benefit  of  any  such  in- 
terest, but  the  will  or  deed  itself,  which  attempts  to  pass  it,  is  void.  In 
Eoper  V.  Radcliffe,  it  was  strongly  insisted,  that  the  money  given  to 
the  papist,  which  was  to  be  the  proceeds  of  the  land,  was  a  profit  or  in- 
terest out  of  the  land.  If  this  can  be  so,  (and  it  is  not  material 
in  this  case  to  affirm  or  deny  that  position)  then  the  will  of  John  Roper 
in  relation  to  the  bequest  to  the  two  papists  was  void  under  the  statute; 
and  if  so,  the  right  of  the  heir  at  law  of  the  testator,  to  the  residue, 
as  a  resulting  trust,  was  incontestible.  The  cases  above  cited  have  fully 
established  that  principle.  In  that  case,  too,  the  rents  and  profits, 
till  the  sale,  would  have  belonged  to  the  papists,  if  they  were  capable  of 
taking,  which  brought  the  case  still  more  strongly  within  the  statute; 
and  this  was  much  relied  on,  not  only  in  reasoning  upon  the  words,  but 
the  policy  of  the  statute. 

Now,  what  is  the  situation  of  an  alien?  He  can  not  only  take  an 
interest  in  land,  but  a  freehold  interest  in  the  land  itself,  and  may 
hold  it  against  all  the  world  but  the  king,  and  even  against  him  until 
office  found,  and  he  is  not  accountable  for  the  rents  and  profits  pre- 
viously received.  Vide  ante,  p.  12,  Jackson  ex  dem.  State  of  New 
York  V.  Clarke,  note  c.  In  this  case  the  will  being  valid,  and  the  alien 
capable  of  taking  under  it,  there  can  be  no  resulting  trust  to  the  heir, 
and  the  claim  of  the  State  is  founded  solely  upon  a  supposed  equity,  to 
liave  the  land  by  escheat,  as  if  the  alien  had,  or  could  upon  the  prin- 
ciples of  a  court  of  equity  have  elected  to  take  the  land  instead  of 
the  money.  The  points  of  difference  between  the  two  cases  are  so  striking 
that  it  would  be  a  waste  of  time  to  notice  them  in  detail. 

It  may  be  further  observed,  that  the  case  of  Roper  v.  Radcliffe  has 


620  CRAIG  V.  LESLIE  [part  i. 

never,  in  England,  been  applied  to  the  case  of  aliens;  that  its  authority- 
has  been  submitted  to  with  reluctance,  and  is  strictly  confined  in  its 
application  to  cases  precisely  parallel  to  it.  Lord  Mansfield,  in  the 
case  of  Foone  v.  Blount,  speaks  of  it  with  marked  disapprobation ;  and 
we  know,  that  had  Lord  Trevor  been  present,  and  declared  the  opinion 
he  had  before  entertained,  the  judges  would  have  been  equally  divided. 

The  case  of  the  Attorney- General  and  Lord  Weymouth,  Ambler, 
20,  was  also  pressed  upon  the  court,  as  strongly  supporting  that  of 
Roper  V.  Radcliffe,  and  as  bearing  upon  the  present  case. 

The  first  of  these  propositions  might  be  admitted;  although  it  is  cer- 
tain that  the  mortmain  act,  upon  which  that  case  was  decided,  is 
even  stronger  in  its  expression  than  the  statute  against  Papists,  and 
the  chancellor  so  considers  it;  for,  he  says,  whether  the  surplus  be  con- 
sidered as  money  or  land,  it  is  just  the  same  thing,  the  statute  mak- 
ing void  all  charges  and  encumbrances  on  land,  for  the  benefit  of  a 
charity. 

But  if  this  case  were,  in  all  respects,  the  same  as  Roper  v.  Radcliffe, 
the  observations  which  have  been  made  upon  the  latter  would  all  apply 
to  it.  It  may  be  remarked,  however,  that  in  this  case,  the  chancellor 
avoids  expressing  any  opinion  upon  the  question,  whether  the  money  to 
arise  from  the  sale  of  the  land  was  to  be  taken  as  personalty  or  land ;  and, 
although  he  mentions  the  case  of  Roper  v.  Radcliffe,  he  adds,  that  he 
does  not  depend  upon  it,  as  it  was  immaterial  whether  the  surplus  was  to 
be  considered  as  land  or  money  under  the  mortmain  act. 

Upon  the  whole,  we  are  unanimously  of  opinion,  that  the  legacy  given 
to  Thomas  Craig,  in  the  will  of  Robert  Craig,  is  to  be  considered  as  a 
bequest  of  personal  estate,  which  he  is  capable  of  taking  for  his  own  ben- 
efit. 

Certificate  accordingly.^ 

^  "The  practical  results  of  the  doctrine  of  equitable  conversion,  as  applied 
to  the  change  of  real  into  personal  estate,  are  chiefly  these:  First,  the  rents 
of  the  estate  between  the  death  of  the  testator  and  the  actual  sale  go  to 
the  party  who  takes  the  proceeds;  next,  a  right  in  the  proceeds,  which 
cannot  take  effect  or  vest  in  the  party  to  wiiom  it  is  given,  passes,  where 
the  conversion  is  established,  to  the  personal  representative  of  the  devisor — not 
to  his  heir;  thirdly,  where  the  right  has  actually  vested,  but  no  sale  has  been 
made,  the  personal  representative  of  the  party  entitled  takes,  and  not  his 
heir ;  and  another  consequence  also  sometimes  takes  place,  that  although  the 
heir  takes  a  share  which  has  fallen  in,  he  takes  it  as  money,  so  that  the 
succession  from  him  is  changed.    Smith  v.  Claxton,  4  Mad.  E,ep.  491. 

"Very  little  difficulty  attends  the  first  proposition,  because  it  is  obvious 
that  if  the  corpus  vests  in  a  competent  party  the  income  would  naturally 
follow  it,  where  there  is  nothing  to  prescribe  a  different  direction.  Fitzgerald 
V.  Jervoise,  5  Mad.  Rep.  22.  And  whether  there  is  a  devise  of  the  legal 
estate  to  trustees  or  only  a  naked  power  does  not  appear  to  make  a  diflerence. 
Yatfs  V.  Compton,  2  P.  Wms.  308.  But  as  to  the  next  proposition  the 
application  of  the  doctrine  is  not  so  easy.    The  criteria  which  the  authorities 


CHAP,  v.]  ACKROYD  v.  SMITHSON  and  others  621 


ACKEOYD  V.  SMITHSON  and  others. 

In  Chancery,  before  Lord  Chancellor  Thurlow,  1780. 

[1  Brown    Chancery,  503.] 

Christopher  Holdsworth,  by  his  will,  gave  (int.  al.)  to  the  defendants, 
Smithson  and  Ibbetson,  £200  in  trust  to  be  used  in  the  education  of  de- 
fendant, Mary  Bracklebank,  then  an  infant.  He  also  made  a  number  of 
other  bequests  in  specified  amounts  to  various  parties  named.  His  whole 
estate,  real  and  personal,  he  left  to  the  defendants  Smithson  and  Ibbetson, 
they  to  sell  the  same  for  such  price  as  was  obtainable,  and  to  pay,  out  of 

upon  tlie  subject  of  conversion  furnish  are  these — whether  the  will  lias  pre- 
scribed a  sale  absolutely,  and  at  all  events — for  all  purposes,  not  merely  for 
the  purposes  of  the  will — irrespective  of  all  contingencies,  and  independent  of 
all  discretion.  If  the  sale  is  to  be  made  for  a  special  purpose,  or  the  general 
purposes  of  the  will,  and  these  purposes  fail,  conversion  does  not  "take  effect; 
if  it  is  to  be  made  on  a  given  event,  it  depends  upon  the  occurrence  of  that 
event ;  if  the  disposition  is  left  to  the  discretion  of  the  grantee  of  the  power, 
the  will  is  not  imperative,  and  does  not  convert  the  estate. 

"These  principles  are  to  be  drawn  from  the  following  authorities:  Wheldale 
V.  Partridge,  5  Vesey,  388;  8  Vesey,  227;  Mr.  Cox's  note  to  Cruse  v.  Bailey, 
3  P.  Wms.  22;  Digby  v.  Legard,  there  cited;  Fletcher  v.  Ashburner,  1  Br.  C.  K. 
497 ;  Ackroyd  v.  Smithson,  Ibid.  509,  and  Lord  Eldon's  celebrated  argument  in 
that  case;  Powell  on  Devises,  by  Jarniyn,  vol.  ii.  p.  GO;  Leigh  &  Dalzell  on  Eq. 
Conversion,  p.  50  et  passim ;  McLelland  v.  Shaw,  2  Sch.  &  Lefroy,  538.  In 
Solley  V.  Seymour,  Exch.  Dec,  1837.  Burgess  Rep.  Law  Journal,  vol.  vii. 
p.  12,  Baron  Alderson  said:  'The  principle  upon  which  the  court  proceeds, 
is  clear.  We  are  to  examine  the  whole  will  and  see  whether  the  explained  in- 
tention of  the  testator  to  be  collected  therefrom  was,  that  the  property  should 
be  converted  out  and  out,  as  it  is  called ;  or  whether  it  was  given  to  the  trustee 
upon  trust,  either  to  sell  or  not  to  sell,  as  he  in  his  discretion  might  judge 
best.'  He  then  shows,  that  in  the  case  before  the  court,  there  was  a  plain 
indication  of  a  discretion  as  to  a  sale,  and  the  property  remained  as  at  the 
testator's  death. 

"In  the  ease  before  me,  it  is  certain  that  the  testator  meant  to  have  his 
whole  property  of  every  description  converted  into  money,  and  as  such  dis- 
tributed. His  language  applies  to  a  division  of  money.  But  it  is  equally 
certain  that  the  sale  was  to  be  made  for  the  purposes  of  the  will.  It  is  not 
clear  that  he  meant  his  real  estate  should  be  disposed  of,  if  the  purposes  of 
the  will  should  fail. 

"Supposing  every  bequest  in  this  will  valid — that  the  residuary  legatees 
were  all  competent,  natural  persons — and  that  one  of  them  had  died  before 
the  death  of  the  testator,  and  after  the  date  of  the  will,  it  is  clear  that  the 
heir  of  the  testator  would  have  had  the  benefit  of  the  lapse,  not  the  personal 
representative. 

"Again,  it  is  equally  clear  in  the  case  supposed,  that  although  a  sale  would 


622  ACKEOYD  v.  SMITIISON  and  others  [part  i.. 

the  proceeds,  all  his  debts,  bequests,  legacies,  and  annuities.  If  after- 
such  payments  there  remained  any  surplus,  this  was  to  be  divided  among 
the  various  beneficiaries  named  in  his  will  proportionately  to  the  amount 
he  had  first  willed  them.  He  then  directed  that  two  sums  of  £250  each 
should  be  invested  in  the  names  of  the  trustees,  and  the  interest  of  the 
same  to  be  paid  to  Thackeray  and  Gaunt,  respectively,  during  their  lives, 
and  upon  their  deaths,  the  principal  to  be  divided  proportionately  among 

have  to  take  place,  to  answer  the  purposes  of  the  will  which  could  be  effected, 
that  would  not  vary  the  right  of  the  heir,  but  he  would  take  the  proportion  of 
the  proceeds  representing  the  interest  which  had  failed. 

"It  is  needless  to  advert  to  any  other  authority  than  that  of  Ackroyd  v.. 
Smithson,  1  Br.  C.  R.  502.  Lord  Eldon's  celebrated  argument  in  that  case, 
has  been  the  settled  test  of  every  decision  since.  The  circumstances  were 
very  analogovis  to  the  present  case.  The  will  gave  pecuniary  legacies  to  a 
number  of  persons,  and  after  devising  the  real  estate  in  trust  to  sell,  then  gave 
the  overplus  in  the  hands  of  trustees  to  the  same  legatees,  in  proportion  to  the 
several  legacies  therein  bequeathed  to  them.  The  will  also  directed  the  con- 
version of  real  and  personal  estate  into  money,  and  constituted  the  pro- 
ceeds of  both  a  blended  fund  for  payment  of  the  charges,  legacies  and  surplus.. 
So  far  it  closely  resembled  the  present  devise;  and  it  was  stronger  against  the 
heir,  because  there  was  an  express  devise  to  the  trvistees,  sufficient  to  carry 
the  legal  estate  from  the  heirs ;  while  here  there  is  but  a  power. 

"Two  of  tlie  legatees  died  before  the  death  of  the  testator,  and  Mr.  Scott 
changed  the  opinion  of  Lord  Thl'RLOW  and  obtained  a  decree  that  the  heir 
at  law  took  the  shares  which  fell  in  of  the  proceeds  of  real  estate.  See  also 
Hill  V.  Cook,  1  Vea.  &  B.  173. 

"Again,  if  there  had  been  a  portion  of  the  blended  fund  set  apart,  and  the 
interest  or  income  of  it  given  to  a  legatee  for  life  only,  with  no  disposition 
over,  the  share  which  resulted  from  the  real  estate  would,  on  the  deatli  of  the- 
tenant  of  life,  have  gone  to  the  heir  of  the  testator,  not  to  a  general  residuary- 
legatee,  or  the  personal  representative.  And  so,  if  one  of  the  legatees  was  ta- 
receive  his  proportion  on  attaining  a  certain  age,  and  died  after  the  death 
of  the  testator,  but  before  the  period  fixed,  the  share  as  far  as  derived- 
from  real  estate  would  have  fallen  to  the  testator's  heir.  Cruse  v.  Barley, 
3  P.  Wms.  20.     But  see  Powell  on  Devises,  by  Jarmyn,  vol.  i.  p.  98. 

"I  consider  that  the  rule  as  stated  by  Mr.  Cox,  3  P.  Wms.  23,  will  be- 
found  strictly  sanctioned  by  tlie  authorities.  'The  several  cases  upon  this  sub- 
ject seem  to  depend  upon  this  question,  whether  the  testator  meant  to  give  to 
the  produce  of  real  estate,  the  quality  of  personalty  to  all  intents,  or  only 
80  far  as  respected  the  particular  purposes  of  the  will ;  for  unless  the  testator 
has  sufficiently  declared  his  intention,  not  only  that  the  realty  should  be 
converted  into  personalty,  for  the  purposes  of  the  will,  but  further,  that 
the  produce  of  the  real  estate  shall  be  taken  as  personalty,  whether  such  pur* 
poses  take  efTect  or  not,  so  nuicli  of  the  real  estate  or  the  produce  thereof  as 
is  not  efTcctually  disposed  of  by  the  will,  at  the  time  of  the  testator's  death 
(whether  from  the  silence  or  the  inefficacy  of  the  will  itself,  or  from  subsequent 
lapse)  will  result  to  the  heir.'  See  especially  Amphlett  v.  Parke,  2  Russell 
&  Mylne,  221,  in  wliich  Lord  Broxgham  overruled  the  decision  of  the- 
Master  of  the  Rolls,  1  Simons,  275,  and  held  the  heir  entitled,  in  a  very  strong, 


CHAP,  v.]  ACKKOYD  v.  SMITHSON  and  others  623 

the  beneficiaries.  Two  of  the  beneficiaries  died  in  the  lifetime  of  the 
testator. 

The  bill  was  filed  by  the  next  of  kin  of  the  testator,  af?ainst  the  surviv- 
ing legatees  an<l  the  heir  at  law,  claiming  the  legacies  given  to 
the  deceased  legatees,  their  shares  in  the  overplus,  and  in  the  two  sums  of 
£250  as  lapsed,  and  become  part  of  the  personal  estate  of  the  testator. 

The  cause  came  on  at  the  Rolls,  July  10,  1778,  when  His  Honor  Sir 
Thomas  Sewell,  being  of  opinion  that  the  surviving  legatees  took  the 
whole  residue,  in  proportion  to  their  several  legacies,  dismissed  the  bill, 
without  costs. 

From  this  decree  the  plaintiffs  appealed  to  Lord  Chancellor;  and  the 
cause  coming  on  to  be  heard  before  his  Lordship. 

Mr,  Kenyon  attempted  to  support  the  decree. 

Mr.  Scott  for  the  heir  at  law.^ 

case.  He  says  that  the  rule  is  exceedingly  well  stated  in  a  very  learned  and 
useful  note  in  the  report  of  Bruse  v.  Barley;  that  Mr.  Cox  in  that  note  ex- 
tracts the  sound  principle  to  be  collected  from  all  the  cases."  Per  Assistant 
Vice-Chancellor  Hoffman,  in  Wright  v.  Trustees  of  Meth.  Epis.  Church,  1839, 
1  Hoff.  Ch.  202,  218. 

"It  was  argued  that  when  real  estate  is  once  converted  into  money  for 
any  purpose  it  becomes  personal  for  all  purposes,  and  from  the  time  of 
such  conversion  will  pass  as  personal  property;  and  the  case  of  Emerson  v. 
Cutler,  14  Pick.  108,  was  cited.  But  that  affords  no  authority  for  any  such 
general  position.  On  the  contrary,  it  was  the  sale  of  the  vested  real  estate 
of  a  minor  by  her  guardian,  under  license,  and  it  was  held — we  think  rightly — 
that  the  proceeds  became  her  personal  property.  It  was  not  the  less  her 
property  because  she  was  a  minor  under  guardianship,  though  that  afforded 
a  good  reason  why  she  did  not  conduct  the  business  personally.  The  estate 
was  hers  absolutely,  and  therefore  from  the  moment  of  the  sale  the  proceeds, 
in  money  or  securities,  were  her  property  and  her  chores  in  action,  as  owner. 
The  one  species  of  property  replaced  the  other.  It  is  exactly  within  the 
authority  of  William   v.  Hichborn,   4   Mass.    189. 

"As  a  general  rule  to  be  deduced  from  the  cases,  we  think  that  in  case  of 
such  conversion  of  real  into  personal  estate,  to  stand  in  place  of  the  real, 
as  more  beneficial  to  the  parties,  without  changing  the  beneficial  destination, 
the  character  thus  impressed  on  the  money  will  attach  to  it  until  it  reaches 
one  who,  if  it  had  remained  real  estate,  wovild  take  it  beneficially — that  is, 
to  his  own  use  absolutely,  or  with  a  power  like  that  of  tenant  in  tail  in 
possession,  to  dispose  of  it  absolutely,  or  make  it  his  ovm.  to  all  purposes, 
and  it  will  then  be  his  absolutely."  Per  Shaw,  C.J.,  in  Holland  v.  Adams, 
1855,  3  Gray  188,  190. 

^  The  circumstances  attending  Lord  Eldon's  appearance  in  Ackroyd  v. 
Smithson  are  admirably  set  forth  in  Twiss'  "Life  of  Eldon,"  116-120.  It 
appears  that  young  Scott  was  retained  to  enter  consent  for  the  heir  at  law, 
but  inasmvuh  as  he  believed  the  heir  at  law  was  entitled  to  the  lapsed 
share,  he  argued  the  case.  The  client  felt  that  he  had  no  case,  and  while 
stating  "something  about  young  men  being  obstinate,"  directed  Scott  to  do 
as  he  thought  right. 


€24  ACKROYD  v.  SMITIISON  and  others  [part  i. 

Tlie  chancellor  reversed  the  decree,  and  directed  an  account  to  be 
taken  of  the  personal  estate,  and  the  money  arising  from  the  sale  of  the 
real  estate,  and  that  the  share  of  the  deceased  legatees  in  the  overplus 
should  be  divided  between  the  next  of  kin  and  the  heir;  that  is,  so  much 
of  those  shares  as  was  constituted  of  the  personal  estate  to  the  next  of 
kin,  and  so  much  as  was  made  up  of  the  produce  of  the  real  estate  to  the 
heir.  He  said  that  he  fully  approved  the  determination  in  Digby  v. 
Legard.  That  he  used  to  think,  when  it  was  necessary  for  any  purposes 
of  the  testator's  disposition,  to  convert  the  land  into  money,  that  the  un- 
disposed money  would  be  personalty;  but  the  cases  fully  proved  the  con- 
trary. It  would  be  too  much  to  say  that  if  all  the  legatees  had  died,  the 
heir  could,  as  he  certainly  might,  he  said,  prevent  a  sale ;  and  yet  to  say 
that  because  a  sale  was  necessary,  the  heir  should  not  take  the  undis- 
posed part  of  the  produce.  The  heir  must  stand  in  the  place  of  the  resid- 
uary legatees  who  died,  as  to  the  produce  of  the  real  estate.  He  said  he 
approved  the  distinctions  made  in  behalf  of  the  heir,  and  decreed  as  be- 
fore.' 

"Competent  counsel  held  against  the  claim  of  the  heir  at  law.  and  judiciously 
advised  the  client  as  follows:  'Do  not  send  good  money  after  bad;  let 
Mr.  Scott  have  a  guinea  to  give  consent,  and  if  he  will  argue,  why  let  him 
do  so,  but  give  him  no  more.'  The  young  man  argued  accordingly,  with  the 
result  that  Lord  TiiURLOw  took  three  days  to  consider,  'and  then  delivered  his 
judgment  in  accordance  with  my  speech,  and  that  speech  is  in  print,  and  has 
decided  all  similar  questions  ever  since.' 

"At  a  later  period  the  young  man  took  a  brief  against  his  argument  in 
the  case  of  Ackroyd  r.  Smithson,  but  the  celebrated  Dunning  (Lord  Asu- 
burton)  said:  'Mr.  Scott,  I  have  read  your  argument  in  that  case  of 
Ackroyd  v.  Smithson,  and  I  defy  you  or  any  man  in  England  to  answer  it. 
I  won't  hear  you.'  " 

^  In  case  of  a  total  failure  the  res  remains  the  same.  Edward  v.  Turk, 
1856,  23  Beaven  268;  or  where  the  conversion  is  unnecessary,  Chitty  v. 
Parker,  1793,  2  Vesey  271.  "Previous  to  the  case  of  Ackroyd  v.  Smithson, 
it  was  held  that  an  unqualified  direction  by  a  testator  in  his  will  to  sell 
land  or  to  buy  land  with  his  money  created  a  complete  conversion  in  equity 
of  tlie  land  into  money  or  of  the  money  into  land,  and  that  this  conversion 
was  ell'ective  for  all  the  purpose  of  devolution  at  the  testator's  death,  so  that 
land  thus  convoi'od  would  devolve  in  equity  as  if  it  were  money,  i.e.,  would 
go  to  the  executor  in  whose  hands  it  would  be  money  for  all  purposes,  for 
example,  for  the  payment  of  debts  and  legacies  arid  for  distribution  among 
the  testator's  next  of  kin;  and  so  that  money  thus  converted  would  devolve 
in  equity  as  if  it  were  land,  i.e.,  would  pass  as  land  to  the  testator's  devisees 
or  descent  to  his  heir. — so  that  it  would  neither  be  assets  for  payment  of 
debts,  nor  liable  ff)r  legacies,  and  the  testator's  next  of  kin  would  have  no 
(laim  upon  it."  Langdell  Equital)le  Conversion  1!)  Harvard  Law  Review  1, 
wliere  an  interesting,'  account  is  given  of  Lord  Eldon's  connection  with  this  cele- 
biated  case. 

After  an  extended  examinalion  of  tlic  autliorities,  Professor  Langdell  con- 
tinui's,  Idem  23: 


ciiAi'.  v.]  SMITH  V.  CLAXTON  and  otiikrs  625 

SMITH  V.  CLAXTON  and  others. 

In  Chancery,  before  Sir  John  Leach,  V.C,  1820. 

[4  Maddoch  484.] 

Thomas  Smith,  by  his  will,  April  1st,  1811,  after  making  certain 
specific  bequests  to  his  wife,  Margaret  Smith,  bequeathed  all  his  personal 
estate  and  his  real  estate  in  the  town  of  Stokesley,  to  Hisilton  and  Stev- 
enson, upon  a  trust,  to  sell  the  same  and  from  the  proceeds  to  pay  first 
his  debts,  and  funeral  expenses,  and  then  to  pay  as  legacies,  £40  to  his 
wife;  £10  to  his  son  Thomas;  £300  to  his  son  Joseph;  £1,000  to  his  son 
Robert ;  £40  to  his  niece  Mary : — the  last  three  within  six  months  of  his 
death,  without  interest,  if  they  were  living,  not  otherwise.  A  further  sum 

"What,  then,  are  the  changes  which  the  autliorities  show  to  have  taken  place 
in  respect  to  the  equitable  conversion  of  land  into  money  by  will  since  Ack- 
royd  V.  Smithson  was  decided? 

"1.  As  to  what  constitutes  such  equitable  conversion  there  has  been  no 
change.  2.  Prior  to  Ackroyd  v.  Smithson  evidence  of  such  intention  seems 
to  have  been  looked  for  only  in  such  directions  as  the  will  contained  respecting 
a  sale  of  the  land,  what  mode  of  dealing  with  and  managing  the  proceeds  of 
the  sale  prior  to  or  independent  of,  any  gift  of  the  latter  since  Ackroyd 
V.  Smithson  such  evidence  has  been  primarily  looked  for  in  the  gift  or  gifts 
which  the  testator  makes  of  the  proceeds  of  the  sale ;  and  as  evidence  of  the 
intention  to  have  the  land  sold,  a  gift  which  does  not  take  effect  is  regarded 
as  no  gift. 

"3.  In  the  absence  of  evidence  to  the  contrary,  it  will  be  presumed  that  the 
testator  intended  to  have  so  much  only  of  the  land  sold  as  his  effective  gifts 
of  the  proceeds  of  the  land  shall  render  necessary,  and  hence  so  much  of  the 
land  only  will  be  converted  in  equity,  a  rule,  which  had  no  existence  prior  to 
Ackroyd  v.  Smithson. 

"4.  Since  Ackroyd  v.  Smithson,  however,  the  doctrine  has  become  established 
that  an  equitable  conversion  by  will  is  presumptively  coextensive  only  with 
the  purposes  for  which  the  sale  is  directed,  and  hence  the  distinction  has 
become  established  between  an  equitable  conversion  for  the  purposes  of 
the  will  only,  and  an  equitable  conversion  'out  and  out';  and  as  the  presump- 
tion is  that  a  testator  intends  the  land  to  be  sold  only  for  the  purposes  which 
he  expresses  in  his  will,  so  the  presumption  is  that  he  intends  to  create  an 
equitable  conversion  for  the  purposes  of  his  will  only. 

"7.  For  while  such  a  conversion  before  Ackroyd  v.  Smithson  caused  any 
portion  of  the  land,  the  produce  of  which  was  not  disposed  of,  to  go  to  the 
testator's  personal  representatives,  it  now  has  merely  the  effect  of  causing  the 
heir  to  take  the  same  as  money. 

"8.  The  true  reason  seems  to  be  that  the  courts  now  recognize  the  fact  as 
they  did  not  prior  to  Ackroyd  v.  Smithson,  nor  till  long  afterwards,  that  an 
equitable  conversion  of  land  by  will  can  never  come  in  time  to  intercept  the 
descent  of  the   land  to  testator's   heir." 


626  SMITH  V.  CLAXTON  axd  others  [part  i. 

of  £40  was  to  be  paid  to  his  nephew-in-law,  Thomas  Coxton,  when  latter 
was  twenty-one  years  of  age.  The  ultimate  residue  or  surplus  was  to  go 
to  his  wife,  executors,  etc.  Other  property  as  devised  to  the  same 
trustees  upon  a  further  trust  to  receive  the  profits  and  pay  them  to  his 
wife  during  her  life;  after  her  death,  to  his  son  Thomas,  at  whose  death 
the  closes  were  to  be  sold  and  the  proceeds  to  be  divided  equally  amongst 
Robert,  son  of  Thomas,  and  other  children,  lawfully  to  be  begotten  of  his 
son  Thomas,  the  interest  to  be  considered  vested  in  them  respectively, 
when  they  attained  twenty-one ;  but  if  his  said  grandchildren  born  and 
to  be  born  should  die  before  they  were  twenty-one,  unmarried  and  without 
issue,  then  the  money  was  to  go  to  his  sons  Joseph  and  Robert  in  equal 
shares.  Other  freeholds  were  given  to  the  same  trustees,  out  of  which  to 
pay  an  annuity  of  £27  to  his  son  Thomas,  during  the  life  of  his  wife, 
and  subject  thereto  to  pay  the  rent  to  Robert  for  life ;  after  his  death  to 
his  children ;  and  if  no  children,  then  to  go  to  the  testator's  sons  Thomas 
and  Joseph  equally. 

The  testator  died  29th  February,  1816,  and  left  surviving  Thomas 
Smith,  his  eldest  son  and  heir  at  law;  and  also  his  two  other  children, 
Margaret  Smith  and  Joseph  Smith;  but  the  testator's  wife,  and  his  son 
Robert,  and  also  his  grandson  Robert  (the  son  of  the  testator's  son  Thom- 
as), died  in  the  lifetime  of  the  testator.  The  legacies  bequeathed  to  them 
having  lapsed,  the  other  specific  and  pecuniary  legacies  and  debts  charged 
upon  the  testator's  freehold  estate,  in  aid  of  his  personal  estate,  were  very 
small,  and  were  paid  out  of  his  personal  estate,  which  was  more  than  suf- 
ficient for  the  payment  of  the  same. 

Thomas  Smith,  the  son,  died  14th  June,  1816,  without  issue,  having 
previously  made  his  will,  but  not  attested,  so  as  to  pass  real  estates  in 
favor  of  the  plaintiff,  his  wife,  and  others ;  and  the  wife  filed  the  present 
bill  to  obtain  a  decision  as  to  the  effect  of  the  will  of  Thomas  Smith  elder, 
and  the  questions  were: 

1.  Under  the  first  devise,  whether,  as  the  debts  and  legacies  were  paid 
from  the  personal  estate,  and  the  wife  was  dead,  Thomas,  the  heir  of  the 
testator,  took  the  estates,  as  land  which  descended  to  his  heir;  or  as 
money,  which  passed  to  his  personal  representative? 

2.  Under  the  second  devise,  whether,  as  the  testator's  son  Robert,  had 
died  in  his  lifetime,  the  moiety  of  the  produce  of  the  sale,  which  was 
given  to  him,  and  being  lapsed  by  his  death,  vested  in  Thomas,  as  heir  of 
the  testator,  was  to  be  considered  as  land  descending  to  the  heir  of 
Thomas ;  or  as  part  of  the  personal  estate  of  Thomas  ? 

3.  Under  the  third  devise,  whether  the  money  of  the  produce  of  the 
sale,  which  Thomas  the  heir  took  by  limitation,  upon  failure  of  Robert 
and  his  children,  was  also  to  be  considered  as  land  descending  to  the  heir 
of  Thomas;  or  as  part  of  the  personal  estate  of  Thomas? 

The  Vice-Chancellor.  The  inaccuracy  of  some  expressions,  which 
are  to  be  found  in  the  books,  has  created  much  of  the  difficulty  which 
arises  in  cases  of  this  kind.    I  have  anxiously  considered  every  authority 


CHAP,  v.]  SMITH  V.  CLAXTON  and  others  627 

which  has  been  referred  to;  and  my  endeavor  has  been  to  extract  from 
them  certain  general  principles  which  may  admit  of  clear  application. 
Where  a  devisor  directs  his  real  estate  to  be  sold,  and  the  produce  to 
be  applied  to  particular  purposes,  and  those  purposes  partially  fail,  the 
heir  at  law  is  entitled  to  that  part  of  the  produce  which  in  the  event  is 
thus  undisposed  of.  The  heir  at  law  is  entitled  to  it,  because  the  real 
estate  was  land  at  the  devisor's  death ;  and  this  part  of  the  produce  is  an 
interest  in  that  land  not  effectually  devised,  and  which  therefore  descends 
to  the  heir.  It  is  for  this  reason  that  the  produce  of  an  estate,  which 
the  devisor  directs  to  be  sold,  can  never  be  strictly  part  of  his  general 
personal  estate.  If  a  devisor  directs  such  produce  to  be  paid  to  his  execu- 
tors, and  applied  as  part  of  his  personal  estate,  the  executors  take  it  as 
devisees.  Every  person,  taking  an  interest  in  the  produce  of  land  directed 
to  be  sold,  is  in  truth  a  devisee  and  not  a  legatee.  A  devisor  may  give  to 
his  devisee  either  land,  or  the  price  of  land,  at  his  pleasure ;  and  the  de- 
visee must  receive  it  in  the  quality  in  which  it  is  given,  and  cannot  inter- 
cept the  purpose  of  the  devisor.  If  it  be  the  purpose  of  the  testator  to 
give  land  to  the  devisee,  the  land  will  descend  to  his  heir ;  if  it  be  the  pur- 
pose of  the  devisor  to  give  the  price  of  land  to  the  devisee,  it  will,  like 
other  money,  be  part  of  his  personal  estate.  Under  every  will,  when  the 
question  is,  whether  the  devisee  or  the  heir  failing,  the  devisee  takes  an  in- 
terest in  land,  as  land  or  money,  the  true  inquiry  is,  whether  the  devisor 
has  expressed  a  purpose  that,  in  the  events  which  have  happened,  the  land 
shall  be  converted  into  money?  Where  a  devisor  directs  his  land  to  be 
sold,  and  the  produce  divided  between  A  and  B,  the  obvious  purpose  of 
the  testator  is,  that  there  shall  be  a  sale  for  the  convenience  of  division ; 
and  A  and  B  take  their  several  interests  as  money,  and  not  land.  So,  if  A 
dies  in  the  lifetime  of  the  devisor,  and  the  heir  stands  in  his  place,  the 
purpose  of  the  devisor,  that  there  shall  be  a  sale  for  the  convenience  of 
division,  still  applies  to  the  case ;  and  the  heir  will  take  the  share  of  A,  as 
A  would  have  taken  it — as  money,  and  not  land.  But  in  the  case  put,  let 
it  be  supposed  that  A  and  B  both  die  in  the  lifetime  of  the  devisor,  and 
the  whole  interest  in  the  land  descends  to  the  heir;  the  question  would 
then  be,  whether  the  devisor  can  be  considered  as  having  expressed  any 
purpose  of  sale  applicable  to  that  event,  so  as  to  give  the  interest  of  the 
heir  the  quality  of  money.  The  obvious  purpose  of  the  devisor  being, 
that  there  should  be  a  sale  for  the  convenience  of  division  between  his 
devisees,  that  purpose  could  have  no  application  to  a  case  in  which  the 
devisees  wholly  failed,  and  the  heir  would  therefore  take  the  whole  in- 
terest as  land. 

To  apply  these  principles,  which  I  apprehend  to  be  the  true  result 
of  all  the  authorities  to  the  present  case:  Under  the  first  devise,  the 
estate  is  directed  to  be  sold,  and  the  produce  applied  in  aid  of  the  presonal 
estate,  in  payment  of  debts  and  legacies ;  and  the  surplus  is  given  to  the 
wife.  The  debts  and  legacies  are  fully  paid  out  of  the  personal 
estate;  and  the  wife  dies  in  the  testator's  lifetime.     The  whole  interest 


628  CLARKE  v.  FRANKLIN  [part  i. 

thus  resulted  in  Thomas  the  heir  and  the  devisor's  purpose  of  sale  being 
plainly  for  a  distribution,  according  to  the  will,  has  no  application  to 
the  events  which  have  happened,  and  Thomas  took  the  estate  as  land, 
which  descends  in  that  character  to  his  heir. 

Under  the  second  devise,  there  is  an  obvious  purpose  of  sale  for  the 
convenience  of  division  between  the  sons  of  Thomas,  or  failing  them, 
between  the  devisor's  sons  Joseph  and  Robert.  The  only  son  of  Thomas, 
and  the  devisor's  son  Robert,  both  die  in  the  devisor's  lifetime,  and 
Thomas  the  heir  becomes  entitled,  by  lapses,  to  the  moiety  of  the  produce 
intended  for  Robert.  The  purpose  of  sale  for  convenience  of  division 
still  applies  to  the  events  which  have  happened,  and  this  moiety  is  not 
land,  but  personal  estate  of  Thomas  the  heir. 

Under  the  third  devise,  there  is  the  same  obvious  purpose  of  sale ;  first, 
for  a  division  between  the  children  of  Robert;  and  failing,  then  between 
Thomas  the  heir  and  Joseph.  There  were  no  children  of  Robert,  but 
the  purpose  of  sale  remains ;  and  this  moiety  also  is  not  land,  but  personal 
estate  of  Thomas  the  heir. 

Under  both  these  last  devises,  Thomas  the  heir  might,  by  agreement 
with  his  brother  Joseph,  have  elected  to  take  his  interest  as  land,  but 
no  such  point  is  raised  in  the  pleadings,  nor  are  there  any  facts  before 
the  court  to  that  effect. 


CLARKE  V.  FRANKLIN. 

In  Chancery,  before  Sir  Page  Wood,  V.  C,  1858. 

[4  Kay  &  J.  257.] 

Vice-Chancellor  Sir  W.  Page  Wood: — 

It  appears  to  me  that  this  point  is  governed  by  authority. 

The  case  of  Griffith  v.  Ricketts,  7  Hare,  299,  is  quite  in  accordance 
with  the  previous  authorities.  What  the  Vice-Chancellor  there  says,  is 
this :  "  A  deed  differs  from  a  will  in  this  material  respect.  The  will 
sfjeaks  from  the  death,  the  deed  from  delivery.  If,  then,  the  author  of 
the  deed  impresses  upon  his  real  estate  the  character  of  personalty, 
that,  as  between  his  real  and  personal  representatives,  makes  it  personal 
and  not  real  estate  from  the  delivery  of  the  deed,  and,  consequently,  at 
the  time  of  his  death.  The  deed  thus  altering  the  actual  character  of  the 
property,  is,  so  to  speak,  equivalent  to  a  gift  of  the  expectancy  of  the  heir 
at  law  to  the  personal  estate  of  the  author  of  the  deed.  The  principle 
is  the  same  in  the  case  of  a  deed  as  in  the  case  of  a  will;  but  the  applica- 
tion is  different,  by  reason  that  the  deed  converts  the  property  in  the 
lifetime  of  the  author  of  the  deed,  whereas,  in  the  case  of  a  will,  the 
conversion  dons  not  take  place  until  the  death  of  the  testator,"  Id.  211, 
312.     It  is  not  a  (luestioii  of  actual  physical  conversion  of  the  property 


CHAP,  v.]  CLARKE  v.  FRANKLIN  629 

from  real  estate  into  personal  property,  but  whatever  be  the  time  at 
which  that  conversion  is  directed  to  take  place,  whether  in  the  gi-antor's 
lifetime,  or  after  his  death,  the  grantor,  by  executing  a  deed  of  this 
description,  says,  in  effect :  "  From  the  time  I  put  my  hand  to  this 
deed,  I  limit  so  much  of  this  property  to  myself  as  personal  property." 

That  is  the  actual  decision  in  the  case  of  Hewitt  v.  "Wright,  1  Bro. 
C.  C.  86.  There  real  estate  was  limited  to  the  use  of  the  settlor  for 
life,  with  remainder  to  trustees,  in  trust  to  sell  and  pay  debts  and  a  sum. 
of  £2100,  and,  after  payment  of  their  expenses,  to  pay  and  apply  the 
residue  as  follows:  to  raise  £1500  and  pay  the  interest  to  Dorothy 
Wright,  the  daughter  of  the  settlor,  till  she  married,  and  to  pay  the 
principal  to  Dorothy  within  twelve  months  after  her  marriage ;  and  there 
was  a  power  of  revocation.  The  settlor  died  without  having  exercised 
that  power.  Then  Dorothy  died  without  ever  having  been  married, 
and  the  trust  as  to  the  principal  sum  of  £1500  never  having  taken 
effect,  the  question  was,  whether  that  svim  was  personal  estate  in  the 
grantor  and  passed  by  his  will?  The  Lord  Chancellor  held  that  it  did. 
"  If,"  he  said,  "  it  goes  in  the  case  of  a  will  to  the  heir,  in  the  case 
of  a  deed  it  must  result  to  the  grantor;  and  though,  in  the  case  of  the 
will,  it  cannot  go  to  the  executor  as  money,  not  having  been  converted, 
but  must  descend  to  the  heir ;  yet  he  should  think  that  it  was  personal 
estate  of  the  heir,  and,  if  he  were  dead,  would  go  to  his  executor  " 
(that  has  since  been  decided  to  be  the  case)  ;  "  and  if  so,  where  it 
resulted  to  the  grantor,  it  would  be  personalty  in  his  hands,  and  would 
pass  as  such,"  Id.  90. 

That,  therefore,  is  an  express  decision,  that,  notwithstanding  the  trust 
for  conversion  of  real  estate  into  personal  is  not  to  arise  until  after  the 
death  of  the  settlor,  the  property  is  impressed  with  the  character  of 
personalty  immediately  upon  the  execution  of  the  deed,  and  so  much  as 
is  undisposed  of  results  to  the  grantor  as  personalty. 

The  doctrine  of  the  converse  case  of  personalty  directed  by  deed  or 
will  to  be  converted  into  land,  is  fully  discussed  by  Lord  Eldon  in 
Wheldale  v.  Partridge,  8  Ves.  227,  where,  upon  the  special  terms  of  the 
instrument,  it  was  held  not  to  be  one  which  upon  its  execution  clothed 
the  property  with  real  uses;  but  Lord  Eldon  said,  that,  but  for  those 
special  provisions,  and  if  there  had  been  nothing  more  in  the  deed,  "the 
property  would,  immediately  upon  the  execution  of  the  deed,  have  been 
impressed  with  real  qualities  and  clothed  with  real  uses,  and  the  money 
would  have  been  land,"  8  Ves.  236 ;  clearly  recognising  the  rule,  that 
conversion  takes  effect  from  the  moment  of  the  execution  of  the  deed; 
and  the  rights  of  the  parties,  and  the  character  in  which  the  property  is 
taken  by  them,  are  to  be  determined  according  to  that  conversion. 

The  principles  of  these  authorities  is  therefore  clearly  settled;  and 
where,  as  here,  real  estate  is  settled  by  deed  upon  trust  to  sell  for  certain 
specified  purposes,  ^and  one  of  those  purposes  fails,  there,  whether  the 
trust  for  sale  is  to  arise  in  the  lifetime  of  the  settlor  or  not  until  after 


630  SALT  V.  CHATTAWAY  [part  i. 

his  decease,  the  property  to  that  extent  results  to  the  settlor  as  personalty 
from  the  moment  the  deed  is  executed. 

The  only  exception  is,  where  the  whole  of  the  purposes  for  which 
conversion  is  directed  fail  from  the  moment  of  the  delivery  of  the  deed. 
In  Eipley  v.  Waterworth,  7  Ves.  435,  Lord  Eldox  admits,  that,  where 
conversion  is  directed  for  a  particular  and  special  purpose,  or  out  and 
out,  but  the  produce  to  be  applied  to  a  particular  purpose,  and  the  pur- 
pose fails,  the  intention  fails,  and  this  Court  regards  the  grantor  as  not 
having  directed  the  conversion.  So  here,  if  at  the  moment  when  the 
grantor  put  his  hand  to  this  deed,  the  purpose  for  which  conversion  was 
directed  had  failed — for  instance,  if  he  had  given  all  the  proceeds  instead 
of  a  part  to  charitable  purposes,  so  that  the  property  would  have  been 
at  home  in  his  lifetime,  the  Court  would  have  regarded  it  as  if  no  con- 
version had  been  directed,  and  the  property  would  have  resulted  to  the 
grantor  as  real  estate.  And  so  in  Hewitt  v.  Wright,  if  the  only  purpose 
of  conversion  had  been  the  gift  to  Dorothy  on  her  marriage,  and  she 
had  been  already  dead  at  the  date  of  the  deed  without  having  been 
married,  there  again  the  Court  would  have  regarded  the  grantor  as  not 
having  directed  a  conversion. 

But  here  that  consideration  does  not  arise.  Here  some  of  the  purposes 
for  which  conversion  was  directed  had  not  failed  when  the  deed  was 
executed. 

It  appears  to  me,  therefore,  that  the  property  in  question  resulted  to 
the  grantor  as  personalty.* 


SALT  V.  CHATTAWAY. 

In  Chancery,  before  Lord  Langdale,  M.  E,,  1841. 

[3  Beavan  576.] 

The  Master  of  the  Kolls. 

The  testator  in  this  cause,  having  appointed  certain  persons  to  be 
executors,  devised  and  bequeathed  to  them  all  his  real  and  personal  estates 
(subject  to  the  payment  of  his  funeral  and  testamentary  expences  and 
debts),  on  trust  to  sell  and  convert  the  whole  into  money;  and  having  con- 
stituted a  mixed  and  blended  fund,  consisting  partly  of  personal  estate 
ami  i);irtly  of  tlie  prodnec!  of  real  estate,  he  thereout  gave  certain  legacies, 

'In  Baker  v.  Hall,  180G,  12  Vesey,  497,  it  was  held  that  where  an  annuity 
charge  upon  an  estate  devised  was  voided  under  a  statute,  that  it  sank  for  the 
benefit  of  the  speeific  devisee. 


CHAP  v.]  SALT  V.  CIIATTAWAY  ,  631 

and  then  disposed  of  the  residue.  lie  gave  to  John  Blaydon  a  pecuniary 
legacy  of  1001.,  and  an  equal  sixth  part  of  one-third  share  of  the  residue. 

John  Blaydon  having  died  in  his  lifetime,  the  intentions  of  the  testa- 
tor, as  to  him,  were  disappointed.  The  gifts  to  him  lapsed,  and  with 
respect  to  the  share  of  the  residue,  I  am  of  opinion  that  the  heir  at  law 
and  next  of  kin  are  entitled  to  it,  in  shares  proportioned  to  the  respective 
amounts  of  the  testator's  real  and  personal  estate. 

The  real  estate  is  by  the  will  directed  to  be  converted  into  money, 
i.  e.,  into  personal  estate,  for  the  purposes  of  the  will ;  the  testator  thereby 
determined  the  quality  of  the  property  which  the  legatees  were  to  take; 
but  he  has  expressed  no  intention  to  convert  it  for  any  purposes,  other 
than  those  mentioned  in  the  will;  and  to  the  extent  to  which  those  ex- 
pressed purposes  have  failed;  that  is,  as  to  any  part  of  the  property  in 
respect  of  which  no  intention  of  the  testator  is  expressed,  the  law  is  to 
determine  to  whom  it  belongs;  and  the  two  sorts  of  estate  being  blended, 
each  contributing,  in  proportion,  to  fulfil  the  purposes  which  can  be 
accomplished,  the  share  of  residue  which  has  lapsed  must  be  deemed  to 
consist  of  proportionate  parts  of  the  two  sorts  of  estate ;  and  that  being  so, 
the  proportion  of  the  lapsed  share  of  residue  which  consists  of  the 
produce  of  real  estate,  having  been  directed  to  be  converted  for  a  purpose 
which  is  disappointed,  belongs  to  the  heir. 

It  is  not  easy  to  reconcile  all  the  cases  which  are  to  be  found  in  the 
books  on  these  subjects;  and  the  question  whether  the  lapsed  pecuniary 
legacy  passes  by  the  gift  of  the  residue,  or  ought  to  be  considered  as  un- 
disposed of,  appears  to  me  to  be  attended  with  more  doubt  than  the 
other;  but  considering,  however,  that  the  conversion  of  the  real  estate 
must  be  deemed  to  have  been  made  for  all  the  purposes  of  the  will ;  that, 
besides  the  intention  to  give  a  legacy  of  1001.  to  John  Blaydon,  there  was 
also  an  intention  to  dispose  of  the  residue  after  payment  of  the  legacies; 
that  the  testator  had  determined  the  qualities  of  the  property  which  his 
legatees  were  to  take;  and  that  the  gift  of  residue  is  made  in  terms  to 
give  the  residuary  legatees  of  personal  estate  the  benefit  of  lapsed  legacies, 
— it  appears  to  me  that  the  proper  course  is  to  follow  the  decisions  of 
Durour  V.  Motteux,  1  Ves.  sen.  520 ;  1  Sim.  &  St.  292,  and  Green  v.  Jack- 
son, 5  Buss.  35,  and  2  Buss.  &  Myl.  238,  and  in  conformity  with  those 
cases  I  am  of  opinion  that  the  lapsed  legacy  of  1001.  must  be  held  to 
have  fallen  into  the  residue,  and  to  have  passed  by  the  gift  of  the  residue.^ 

*As  a  discussion  of  what  lapsed  legacies  fall  into  the  residuary  estate 
seems  more  properly  to  belong  to  the  law  of  wills,  further  cases  on  this  sub- 
ject are  omitted. 


632  CUETEIS  v.  WOEMALD  [part  i. 


CUETEIS  V.  WOEMALD. 

In  Chancery,  1878. 

\_Laiv  Reports,  10  Ch.  Div.  172.] 

Jessel^  M.  E.  :' — The  point  which  I  have  to  consider  and  to  decide  is 
this :  A  testator  directed  his  trustees — for  although  the  same  persons 
may  have  been  appointed  executors  they  are  for  this  purpose  trustees,  and 
trustees  only — to  lay  out  his  residuary  personal  estate  in  the  purchase 
of  real  estate,  freeholds  and  copyholds,  to  be  settled  to  certain  uses, 
comprising  a  long  series  of  limitations.  The  residue  was  ascertained, 
that  is,  the  testator's  debts  and  legacies  and  funeral  and  testamentary  ex- 
penses were  all  paid,  and  then  the  residue  was  at  different  times  laid  out 
by  the  trustees,  pursuant  to  the  will,  in  the  purchase  of  freehold  and  copy- 
hold estates,  which  were  conveyed  so  as  to  vest  the  legal  estate  in  the 
trustees. 

That  being  so,  the  limitations  took  effect  to  a  certain  extent,  and 
then,  by  reason  of  failure  of  issue  of  the  tenants  for  life,  the  ultimate 
limitations  failed,  and  there  became  a  trust  for  somebody.  Now,  for 
whom '( 

According  to  the  doctrine  of  the  Court  of  Equity,  settled,  if  I  may  say 
so,  by  the  well-known  case  of  Ackroyd  v.  Smithson,  1  Bro.  C.  C.  503, — for 
it  has  always  been  the  law  of  this  Court  since — this  kind  of  conversion 
is  a  conversion  for  the  purposes  of  the  will,  and  does  not  affect  the  rights 
of  the  persons  who  take  by  law  independent  of  the  will.  If,  therefore, 
there  is  a  trust  to  sell  real  estate  for  the  purposes  of  the  will,  and  the 
trust  takes  effect,  and  there  is  an  ultimate  beneficial  interest  undisposed  of, 
that  undisposed  of  interest  goes  to  the  heir.  If,  on  the  other  hand,  it  is  a 
conversion  of  personal  estate  into  real  estate,  and  there  is  an  ultimate 
limitation  which  fails  of  taking  effect,  the  interest  which  fails  results 
for  the  benefit  of  the  persons  entitled  to  the  personal  estate,  that  is,  the 
persons  who  take  under  the  Statutes  of  Distribution  as  next  of  kin. 
Their  right  to  the  residue  of  the  personal  estate  is  a  statutory  right  inde- 
pendent of  the  will. 

The  result  is  that  in  the  case  I  put  there  is  a  trust  for  the  next  of  kin. 
ITow  any  one  could  imagine  it  was  a  trust  for  anybody  else  it  is  difficult 
to  understand ;  and  had  I  not  been  referred  to  the  judgment  of  a  very 
eminent  Judge  on  this  subject  I  should  have  said  it  was  impossible  to 
understand  it. 

There  certainly  is  authority  for  saying — a  single  authority,  and  an 

'The  statement  of  factH  and  arguments  of  counsel  arc  omitted. 


CHAP,  v.]  CURTEIS  v.  WORMALD  633 

authority  standing  alone — that  the  ultimate  trust  is  not  for  the  next  of 
kin,  but  for  the  executors.  Why?  The  executors  have  ceased  to  have 
anything  whatever  to  do  with  the  matter.  They  have  paid  over  the 
legacy  to  the  legatee,  who  happens  to  be  a  legatee-trustee,  and  who  holds 
it  by  law,  under  the  Statutes  of  Distribution,  as  trustee  for  the  next  of 
kin,  and  no  one  else.  By  what  process  of  reasoning  any  other  result 
can  be  arrived  at  I  have  been  unable  to  discover.  The  decision  to  which 
I  have  referred  is  one  which,  to  my  mind,  is  utterly  opposed  to  the 
whole  law  upon  the  subject. 

Then  the  next  question  which  arises  is,  how  does  the  heir-at-law  in 
the  first  case,  or  the  next  of  kin  in  the  second,  take  the  undisposed  of 
interest?  The  answer  is,  he  takes  it  as  he  finds  it.  If  the  heir-at-law 
becomes  entitled  to  it  in  the  shape  of  personal  estate,  and  dies,  there  is 
no  equitable  reconversion  as  between  his  real  and  personal  represen- 
tative, and  consequently  his  executor  takes  it  as  part  of  his  personal 
estate. 

On  the  other  hand,  if  the  next  of  kin,  having  become  entitled  to  a 
freehold  estate,  dies,  there  is  no  equity  to  change  the  freehold  estate  into 
anything  else  on  his  death :  it  will  go  to  the  devisee  of  real  estate,  or  to  his 
heir-at-law  if  he  has  not  devised  it,  and  will  pass  as  real  estate. 
As  to  that,  there  is  no  question,  no  doubt,  no  difficulty.  No  one  has 
suggested  any  other  principle,  and  even  in  the  case  cited — Reynolds  v. 
Godlee,  -Joh.  536,  582, — it  was  admitted  that  that  was  the  principle,  and 
the  only  point  of  difference  or  distinction  suggested  was  that  which 
appears  to  me  to  be  opposed  to  the  whole  law  on  this  subject,  namely, 
that  there  was  an  ultimate  trust  for  the  executors,  and  not  for  the  next 
of  kin. 

As  that  does  not  seem  to  me  to  have  any  foundation,  and  as  it  appears 
to  me  to  be  opposed  to  both  principle  and  authority,  I  do  not  consider  my- 
self bound  to  follow  that  decision,  and  I  may  say  that  I  am  very  glad  to 
find  I  can  invoke  the  very  same  judgment  of  the  very  same  Judge  for  the 
purpose  of  shewing  that  I  am  not  bound  to  follow  it ;  for,  being  referred  to 
a  decision  of  another  Judge^the  Master  of  the  Rolls — given  several  years 
before,  he  said  that  that  decision  was  not  obligatory  upon  him ;  but  that  as 
ho  thought  it  consonant  with  sense  and  reason,  and  sound  law,  he  chose 
to  follow  it.  Unfortunately  I  do  not  entertain  the  same  view  as  regards 
this  authority,  and  therefore  I  am  unable  to  follow  it. 

A  declaration  was  accordingly  made  "  that  all  the  real  estate  bought 
or  contracted  to  be  bought  before  the  death  of  the  last  tenant  for  life 
passed  to  Edward  Walker  and  Benjamin  Walker,  the  next  of  kin  of  the 
said  testator,  as  real  estate  in  equal  moieties,  and  that  George  Walker  be- 
came entitled  to  one  of  such  moieties  as  the  devisee  of  the  said  Edward 
Walker,  and  to  the  other  moiety  as  the  heir-at-law  of  the  said  Benjamin 
Walker  at  his  (Benjamin  Walker's)  death,  and  that  both  of  such  moie- 
ties passed  to  the  devisees  of  the  real  estates  under  the  will  of  the  said 
George  Walker." 


€34  CTJETEIS  v.  WORMALD  [part  r. 

The  legal  personal  representative  of  Benjamin  Walker  appealed.    The 
appeal  was  heard  on  the  20th  of  December.' 
James,  L.  J. : 

I  have  no  doubt  as  to  the  proper  decision  to  be  arrived  at  in  this 
case.  With  all  deference  to  the  judgment  of  Lord  Hatherly,  it  is  im- 
possible, I  think,  to  arrive  at  any  other  conclusion  than  that  at  which  the 
Master  of  the  Rolls  has  arrived.  It  was  settled  by  Cogan  v.  Stephens 
that  what  was  the  right  rule  as  between  the  real  and  personal  estate 
where  land  was  directed  to  be  sold,  was  also  the  right  rule  as  between 
the  two  estates  in  the  case  where  money  was  directed  to  be  laid  out  in  the 
purchase  of  land,  that  is  to  say,  if  the  purpose  for  which  the  land  was 
required  failed,  the  undisposed  of  interest  went  back  to  the  persons 
entitled  to  the  personal  estate.  It  has  been  urged  that  this  means  that  it 
goes  back  to  the  executors  to  be  dealt  with  as  personal  estate.  But  where 
there  is  no  trust  remaining  to  be  performed,  and  the  executors  have 
entirely  discharged  themselves  from  every  executorial  duty,  it  is  absurd 
to  say  that  the  undisposed  of  interest  in  the  personal  estate  is  to  go 
back  to  them  upon  trust  for  the  persons  entitled  to  the  personal  estate; 
it  goes  directly  to  the  persons  beneficially  entitled,  that  is  to  say,  to  the 
next  of  kin,  just  as  the  undisposed  of  proceeds  of  the  sale  of  real  estate 
go  to  the  heir-at-law.  And  therefore  the  same  principle  applies  in  both 
cases,  which  is  this,  that  where  you  trace  property  into  a  man  there  is  no 
equity  between  his  different  classes  of  representatives  as  to  altering  the 
position  in  which  that  property  is.  If  it  is  money  arising  from  the 
sale  of  the  land  it  remains  money,  that  is  to  say,  the  heir-at-law  of  the 
person  who  has  become  beneficially  entitled  to  it  as  heir-at-law  has  no 
land.  If  it  is  land  purchased  under  a  direction  to  invest  in  land,  the  per- 
sons in  the  personal  estate  of  the  persons  who  have  become  entitled  to  it 
as  next  of  kin,  have  no  right  to  have  it  reconverted  into  money.  This 
property  came  to  the  next  of  kin  in  the  shape  of  real  estate,  and  their 

^  "His  judgments,  which  were  always  remarkably  full  and  lucid,  were  rarely 
appealed  from  and  still  more  rarely  reversed.  His  self-confidence  was  very 
great.  'I  may  be  wrong,'  he  said  once  while  solicitor-general,  'and  some- 
times am,  but  I  never  have  any  doubts.'  This  confident  habit  of  mind  with  his 
extraordinary  love  of  despatch  led  to  his  describing  with  perhaps  imdue  de- 
preciation Lord  Eldon  as  'the  dubitative  chancellor,'  who  might  have  sat  to 
a  painter  for  the  impersonation  of  law's  delay.  Lord  Hardwicke  he  con- 
sidered the  greatest  of  Englisli  equity  judges.  Lord  Cairns  he  was  inclined  to 
phifc  second,  and  liimsclf  third.  It  is  certain  the  final  estimate  of  his  powers 
will  be  a  very  high  one." 

The  learned  Master  of  the  Rolls  was  under  no  illusions  as  to  the  nature  of 
the  Roman  law  and  its  influence  upon  English  jurisprudence.  For  example 
he  once  impressively  and  truly  said:  "Only  in  a  sense  was  it  true  that  our 
cortUMon  law  was  not  based  on  the  Roman  law,  for  we  had  used  the  Roman  law 
as  ilie  Turks  used  tlie  rtMiiains  of  the  splendid  temples  of  antiquity.  We  had 
7)ulled  out  the  stones  and  used  them  in  constructing,'  l)uildings  which  we 
called  our  own."     ,\rti(l(>  on  Sir  (Jioorcje  Jessel,  in  Diet,  of  Nat'l  Biography. 


CHAP,  v.]  SEELEY  v.  JAGO  635 

personal  representatives  have  no  equity  to  have  it  converted,  but  it  must 
go  to  the  heirs  or  devisees  of  the  next  of  kin  according  as  they  died  in- 
testate or  testate.  The  decision  of  the  Master  of  the  Rolls  must  be 
affirmed.' 


SEELEY  V.  JAGO. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1717, 

[1  Peere  Williams,  389.] 

One  devised  that  10001.  should  be  laid  out  in  a  purchase  of  lands  in 
fee,  to  be  settled  upon  A.  B.  and  C.  and  their  heirs,  equally  to  he  divided; 

A.  dies  leaving  an  infant  heir;  and  B.  and  C.  together  vpith  the  infant 
heir,  bring  a  bill  for  this  10001. 

Lord  Chancellor.  The  money  being  directed  to  be  laid  out  in  lands 
for  A.  B.  and  C.  equally,  (which  makes  them  tenants  in  common,)  and 

B.  and  C.  electing  to  have  their  two  thirds  in  money,  let  it  be  paid  to 
them;  for  it  is  in  vain  to  lay  out  this  money  in  land  for  B.  and  C.  when 
the  next  moment  they  may  turn  it  into  money,  and  equity,  like  nature, 
will  do  nothing  in  vain." 

^  "Nearly  all  of  the  testator's  property  consisted  of  land,  and  as,  by  the 
terms  of  the  will,  the  part  of  this  land  so  devised  was  to  be  sold,  and  the 
proceeds  reinvested  in  other  land,  the  bequest,  notwithstanding  this  double 
conversion,  continued  to  be  real  estate."  Lane  v.  Eaton,  1897,  69  Minn.  141, 
143. 

"In  order  to  become  personal  estate  for  the  purposes  of  adminstration  the 
money  must  have  belonged  to  the  decedent  as  personalty.  Whatever  once 
descended  to  her  heirs  cannot  be  divested  from  them,  except  for  the  purpose 
of  liquidating  some  superior  claim.  .  .  .  The  conversion  of  the  land  into  money 
was  only  made  for  a  special  purpose ;  and  that  having  been  accomplished,  the 
surplus,  by  a  fiction  of  equity,  is  reconverted  into  land. 

"The  truth  of  this  view  can  be  easily  shown  by  supposing  that  the  mortgaged 
property  had  consisted  of  separate  lots,  and  no  more  had  been  sold  on  the  fore- 
closure than  was  necessary  to  satisfy  the  mortgage.  The  unsold  residue  would 
then,  of  course,  belong  to  "Mrs.  Dunning's  heirs  or  devisees.  Could  it  possibly 
have  made  any  difference,  if  the  lots  had  happened  to  be  sold  and  a  surplus 
realized?"  Per  Dwight,  J.,  in  Dunning  v.  Ocean  National  Bank,  1875,  Gl 
N.  Y.  497.  There  has,  however,  been  some  fluctuation  in  doctrine  in  New  York. 
See  Bogert  v.  Furman,  1843,  10  Page  496. 

^Accord  Benson  v.  Benson,  1710.  1  Peere  Williams,  130;  Short  v.  Wood, 
1718,  1  Peere  Williams,  470;  Howell  v.  Tompkins,  1886,  42  N.  J.  Eq.  305. 


636  BEADISH  v.  GEE  [part  i. 

But  as  to  the  share  of  the  infant,  that  must  be  brought  before  the 
Master,  and  put  out  for  the  benefit  of  the  infant,  who,  by  reason  of  his 
infancy,  is  incapable  of  making  an  election.  Besides,  that  such  election 
might,  were  he  to  die  during  his  infancy,  be  prejudiced  to  his  heir.' 


BEADISH  V.  GEE. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1754. 

[Amhler  229.] 

Lord  Hardwicke,  Chancellor.  Where  a  decree  is  made  by  consent  of 
counsel,  there  lies  no  an  appeal  or  rehearing,  though  the  party  did  not 
really  give  his  consent;  but  his  remedy  is  against  his  counsel,  &c.,  but  if 
such  decree  was  by  fraud  and  covin,  the  party  may  be  relieved  against 
it,  not  by  rehearing  or  appeal,  but  by  original  bill.  Richmond  v.  Talli- 
cur,  Floyd  r.  Mansell.  So  at  law,  defendant  may  plead  judgment  was  by 
fraud  and  covin  against  his  testator. 

In  the  above  cases,  the  decree  itself  was  pleaded,  but  the  fraud  itself 
was  not  sufiiciently  denied ;  but  if  fraud  is  denied  in  the  answer,  the 
decree  which  is  impeached  may  be  pleaded  to  such  a  bill. 

*  Pomeroy  speaks  of  those  who  may  make  an  election  as  follows: 

"A  person  absolutely  entitled  and  sui  juris.  Benson  v.  Benson,  1  P.  Wms. 
1.30;  Sisson  v.  Giles,  32  L.  J.,  N.  S.,  Ch.,  606;  3  De  Gex,  J.  &  S.  614;  Prentice 
V.  Janssen,  79  X.  Y.  478. 

"Infants  cannot  elect,  but  the  court  may,  for  their  advantage.  See  Seeley  v. 
Jago,  1  P.  Wms.  389;  Carr  v.  Ellison,  2  Brown.  Ch.  56;  Van  v.  Barnett, 
19  Ves.  102;  Robinson  v.  Robinson,  19  Beav.  494;  In  re  Harrop,  3  Drew. 
726,  734. 

"Lunatics  cannot.  Ashby  v.  Palmer,  1  Mer.  296;  In  re  Wharton,  5  De  Gex, 
M.  &  G.  33;  In  re  Barker,  L.  R.   17  Ch.  Div.  241. 

"ilarried  Women. — Under  the  former  law  they  could  only  elect  by  means 
of  a  fine,  or  by  a  consent  in  open  court.  Oldham  •;;.  Hughes,  2  Atk.  452,  453 ; 
Binford  v.  Bawden,  1  Ves.  512;  2  Ves.  38;  Frank  v.  Frank,  3  Mylne  &  Co.  171 ; 
May  V.  Roper,  4  Sim.  360;  Standering  v.  Hall,  L.  R.  11  Ch.  Div.  652;  Wal- 
lace V.  Greenwood,  L.  R.  16  Ch.  Div.  362.  Under  the  statute  3  and  4  Wm.  IV., 
c.  74,  sec.  77,  a  wife  may  elect  by  means  of  a  deed  in  which  her  husband 
join.s,  and  which  is  properly  acknowledged  by  her.  Briggs  v.  Chamberlain, 
11  Hare  69;  Bowyer  v.  Woodman,  L.  R.  3  Eq.  313;  Tuer  v.  Turner,,  20  Beav. 
560;  Forbes  v.  Adams,  9  Sim.  462.  A  deed  by  husband  and  wife,  not  so 
acknowledged,  or  by  either  alone,  would  be  insufTiciont.  Sisson  v.  Giles, 
32  L.  J.,  N.  S.,  Ch.  606;  3  De  Gex,  J.  &  S.  614;  Franks  v.  Bollans,  L.  R.  3 
Ch.  717.  In  this  country  a  married  woman  can  doubtless  elect  by  means 
of  any  instrnmont  sniruient  to  enable  her  to  convey  real  estate."  3  Pomeroy 
JMiuity  .lurisprudcncc,  §   1176  n.    (1). 


CHAP,  v.]  EARLOM  V.  SAUNDERS  637 

Where  money  is  directed  to  be  turned  into  land,  or  vice  versa,  the  per- 
son entitled  to  it  may  elect  in  which  way  he  will  take  it,  as  money  or 
land ;  and  very  slight  evidence  of  his  intention  by  acts  done  will  be  suffi- 
cient; but  his  Lordship  said,  he  could  not  admit  that  parol  declaration 
would,  as  was  intimated  by  Lord  Macclesfield  in  Edwards  v.  Earl  of 
Warwicke;  and  when  he  has  once  signified  that  intention,  he  is  bound 
by  it. 

In  the  present  case,  one  tenant  in  common  had  consented  to  a  decree 
for  sale  of  the  whole  estate,  and  his  Lordship  said,  he  was  bound  by  it; 
for  the  other  parties  were  interested  in  that  consent,  because  their  shares 
of  the  estates  would  not  sell  so  well  separate  as  if  the  whole  was  sold 
together ;  and  his  Lordship  said,  even  if  he  had  afterwards  petitioned  that 
the  land  should  not  be  sold,  yet  the  decree  would  not  be  varied,  and  the 
money  arising  by  the  sale  would  go  to  his  personal  representative.' 


EARLOM  t'.  SAUNDERS. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1754. 

[Amhler  241.] 

William  Powell,  by  will  of  21st  October,  1729,  devised  his  lands  in 
Cheame,  or  elsewhere  in  Surrey,  to  trustees  and  their  heirs,  to  the  use  of 
his  wife  Elizabeth  for  life,  remainder  to  his  first,  etc.,  sons  in  tail  male, 
remainder  to  his  daughters  in  tail,  remainder  to  Widdrington  and 
William  Powell  in  fee,  as  tenants  in  common.  And  directed  £400  should 
be  raised  by  his  executrix  out  of  his  personal  estate  with  all  convenient 
speed  after  his  decease,  and  paid  by  her  to  his  trustees,  or  one  of  them, 
who  should  lay  out  the  same  in  a  purchase  of  lands,  or  any  other  security 
or  securities  as  they  should  think  proper  and  convenient ;  and  directed  the 
lands  so  to  be  purchased,  and  the  security  or  securities  on  which  the  £400 
should  be  so  laid  out,  should  be  made  to  and  settled  on  the  trustees,  their 
heirs  and  assigns,  in  trust  and  to  the  use  of  his  wife  for  life,  and  after 

*  "Where  the  law  has  impressed  real  property  and  uses  upon  moneys,  it  is 
necessary,  in  order  to  put  an  end  to  that  impression,  that  it  be  sho\vn  either 
that  the  party  entitled  to  the  property  and  havinc;  a  right  to  elect  in  what 
shape  he  will  take  it,  has  declared  that  election  or  done  some  act  denoting 
his  intention  thereto ;  or  the  property  must,  according  to  an  expression,  used 
in  some  of  the  cases  at  home — that  is,  the  person  being  the  absolute  owner 
must  have  in  himself  the  entire  qualification  of  heir  and  executor.  -  He  must 
not  only  have  the  just  in  re  but  no  other  person  must  have  an  outstanding 
jus  ad  rem.  In  that  case  if  he  makes  no  declaration  of  his  intention  in  re- 
lation to  it,  it  shall  go  according  to  the  quality  in  which  it  was  left  at  his 
death."     Per  Masqn,  J.,  in  Foreman  v.  Foreman,  1849,  7  Barb.  215,  220. 


638  EAELOM  v.  SAUNDEES  [part  i. 

to  such  uses,  and  under  such  provisions,  conditions,  and  limitations  as 
his  lands  before  devised  were  limited. 

There  was  no  issue  of  the  testator.  After  hia  death,  Widdrington  died ; 
and  after  him,  the  testator's  widow  died.  William  Powell  also  died 
afterwards,  two  days  under  the  age  of  21  years,  having  by  will  given  all 
his  estate  in  general  words  to  plaintiff. 

Question.  Whether  the  £400  is  to  be  considered  as  money,  not  having 
been  laid  out  in  land  by  the  trustees,  who,  it  was  contended,  had  an 
election-  to  lay  it  out  in  purchase  of  land  or  on  security,  and  by  not 
having  invested  it  in  land,  had  determined  that  election,  and  therefore 
it  was  well  devised  by  the  will  of  William  as  money  ? 

Lord  Hardwicke,  Chancellor,  after  hearing  only  one  counsel  for  de- 
fendant, gave  his  opinion,  in  which  he  said  he  had  no  doubt  William 
Powell,  who  became  entitled  to  the  remainder  in  fee,  had  a  proper 
election  to  consider  it  as  mone;^  or  land,  and  had  he  been  at  age,  might 
have  done  some  act  to  determine  it  either  way;  but  as  he  died  under  21, 
he  could  not  do  such  act,  nor  make  his  election.  This  court  never  admits 
trustees  to  have  such  election  to  change  the  rights,  unless  it  is  expressly 
given  them.  Here  the  money  is  to  be  laid  out  in  land  or  securities,  for 
such  uses  as  the  land  is  before  settled.  If  it  is  laid  out  in  securities 
(which  are  personal),  all  the  limitations  might  not  take  place;  for  if 
there  was  a  son  born  he  would  take  the  whole  money,  as  being  tenant  in 
tail,  and  the  subsequent  limitations  would  be  defeated.  The  only  way  to 
make  the  clause  consistent  is,  that  the  money  be  laid  out  on  securities  till 
lands  are  purchased,  and  the  interest  and  dividends,  in  the  meantime,  to 
go  to  such  persons  as  would  be  entitled  to  the  land.* 

^  "The  executors  cannot  sell  by  attorney.  The  power  given  to  them  by  the 
will  was  a  personal  trust  and  confidence,  to  be  exercised  by  them  jointly, 
according  to  their  best  judgment,  under  the  circumstances  contemplated  by 
the  will.  One  executor  in  this  case  cannot  commit  his  judgment  and  dis- 
cretion to  the  other,  any  more  than  to  a  stranger;  for  delegatus  non  potest 
delegari.  The  testator  intended  that  his  representatives  should  have  the 
benefit  of  the  judgment  of  each  of  the  executors  applied  to  the  given  case 
so  long  as  both  of  them  were  alive.  The  agreement  to  sell  was  not  valid, 
being  made  by  one  executor  without  the  personal  assent  and  act  of  the  other. 
The  power  was  not  capable  of  transmission  or  delegation  from  one  executor 
to  the  other,  and  the  rule  of  law  and  equity  on  this  point  is  perfectly  well 
settled.  9  Co.  75,  Comb's  case;  Ingram  v.  Ingram,  2  Atk.  88;  Sir  Thomas 
Clarke  in  Alexander  v.  Alexander,  2  Ves.  643 ;  Lord  Hardwtcke  in  Attorney- 
General  V.  Scott,  1  Ves.  417:  Lord  Redesoai.e  in  2  Sch.  &  Lef.  330;  Hawkins  v. 
Kemp.  3  East  410;  Sudgen  on  Powers,  2d  edit.,  167."  Per  Chancellor  Kent, 
in  Berger  v.  Duff,  1820,  4  Jolins.  Ch.   368,  369. 


CHAP,  v.]  PKENTICE  V.  JANSSEN  63» 


PRENTICE   t;.   JANSSEN. 

The  Court  of  Appeals  of  New  York,  1880. 

[79  N.  Y.  478.] 

Miller,  J.  The  complainant  in  this  action  demands  an  equitable  parti- 
tion or  sale  of  several  pieces  of  land  therein  described,  upon  a  portion 
of  which  was  erected  a  hotel,  called  the  Pavilion  Hotel,  together  with  the 
personal  property,  consisting  of  furniture  in  said  hotel,  and  that  an 
account  be  taken  of  the  disbursements  and  expenditures  made  by  the 
plaintiff,  Augustus  Prentice,  for  the  benefit  of  and  as  additions  to  said 
property,  end  that  the  share  of  the  defendant,  Mary  Ann  Janssen,  be 
charged  upon  the  same  and  deducted  from  her  portion  of  the  proceeds 
of  the  sale  of  the  property.  The  land  belonged  to  Francis  Blancard  at  the 
time  of  his  decease  in  1868,  and  the  title  is  derived  under  the  provisions 
of  his  last  will  and  testament.  The  plaintiff,  Augustus  Prentice,  holds 
three-fourths,  by  conveyances  from  the  residuary  legatees  or  their  repre- 
sentatives, and  the  defendant,  Mary  Ann  Janssen,  the  remaining  one- 
fourth.  The  defendant  last  named  has  joined  with  the  plaintiff  in  mak- 
ing leases  of  the  property  since  1873 ;  large  sums  have  been  expended  in 
making  improvements  by  the  owners,  and  the  rents  have  been  received 
and  applied  in  part,  if  not  entirely  for  that  purpose. 

The  residuary  clause  in  the  will  of  Francis  Blanchard  devised  and  be- 
queathed his  property  to  five  of  his  children,  among  whom  were  Francis 
H.  Blancard  and  the  defendant,  Mary  Ann  Janssen.  It  also  authorized 
Francis  H.  Blancard  to  carry  on  the  hotel  business  in  the  Pavilion  Hotel, 
for  the  term  of  five  years,  if  he  so  desired,  and  the  executors  were  em- 
powered and  directed,  after  the  testator's  death,  to  sell  and  convert  intO' 
money  all  the  real  and  personal  property  of  which  he  should  be  seized 
or  possessed,  including  the  hotel  property,  after  the  right  of  occupancy 
of  his  son  had  ceased,  as  they  should  deem  advisable,  and  divide  the  pro- 
ceeds equally  among  the  residuary  legatees.  The  son,  Francis  H.,  died 
before  the  testator,  and  no  action  was  ever  taken  by  the  executors  to  sell 
the  property,  and  it  remained  undisposed  of,  and  was  used  and  regarded 
by  the  owners  as  real  estate  to  which  they  had  title.  Only  one  of  the 
executors,  the  defendant,  Gerhard  Janssen,  was  living  at  the  time  of  the 
commencement  of  this  action,  and  he  is  made  a  party,  as  the  husband 
of  the  defendant,  Mary  Ann  Janssen,  and  does  not  by  his  answer  claim 
any  rights  as  executor  or  that  he  is  a  proper  party  as  such.  The  answers 
admitted  that  plaintiff  and  the  defendant,  Mrs.  Janssen,  ovsTied  the  prop- 
erty as  tenants  in  common.  We  think  that  under  the  provision  cited 
from  the  testator's  will,  the  executors  who  were  donees  of  a  power  took 
no  estate  in  the  Idnds  as  trustees,  but  merely  a  power  in  trust  to  be  ex- 


640  PRENTICE  v.  JANSSEN  [part  i. 

ecuted  for  the  purposes  of  distribution,  according  to  the  will,  which  was 
liable  to  be  defeated  by  a  reconversion  of  the  property,  which  was  made 
personal  by  the  will,  into  real  estate. 

The  testator,  by  the  authority  and  direction  to  his  executors  to  sell 
the  real  estate,  and,  being  thus  converted,  the  residuary  legatees  were  en- 
titled to  take  the  same  as  such  and  had  a  right  at  their  election  to  recon- 
vert into  real  estate.  No  distinct  and  positive  act  is  required  for  such 
a  purpose,  and  the  rule  applicable  to  such  a  case  is  that  "in  the  recon- 
version of  real  estate,  a  slight  expression  of  intention  will  likewise  be  con- 
sidered sufficient  to  demonstrate  an  election  on  the  part  of  those  abso- 
lutely entitled."  Leigh  &  Dalzell  on  Eq.  Conversion,  5th  vol.  of 
Law  Library,  m.  p.,  168;  Mutlow  v.  Bigg,  L.  R.,  1  Chan.  Div.,  385; 
1  Jarman  on  Wills,  523,  et  seq.  The  real  estate  was  not  disposed  of  by 
the  executors  under  the  provisions  contained  in  the  will,  and  as  there 
was  no  obstacle  to  prevent  a  reconversion  of  the  same  by  the  parties 
in  interest  from  personal  into  real  estate.  This  they  elected  to  do  by 
positive  and  unequivocal  acts.  Three  of  the  four  residuary  interests  were 
conveyed  to  the  plaintiff,  Augustus  Prentice,  and  the  defendant,  Mary 
Ann  Janssen,  retained  the  other  one-fourth.  The  whole  has  since  been 
enjoyed,  possessed  and  treated  the  same  as  real  estate.  This  was 
done  by  the  acquiescence  of  the  executors  and  all  the  parties  in  in- 
terest, not  only  by  possession,  but  by  acts  showing  their  intention  beyond 
any  question.  In  Story's  Equity  Jurisprudence,  §  793,  it  is  said  that 
if  land  is  directed  to  be  converted  into  money  merely,  the  party  entitled 
to  the  beneficial  interest  may,  if  he  elects  so  to  do,  prevent  any  conver- 
sion of  the  property  and  hold  it  as  it  is.  This  has  been  done  by  the 
residuary  legatees  here;  and  as  the  lands  were  not  sold  and  disposed  of 
by  the  executors,  and  no  diversion  made,  the  rule  applies  that  the  person 
entitled  to  the  money,  being  of  lawful  age,  can  elect  to  take  the  land,  if 
the  rights  of  others  will  not  be  affected  by  such  election.  Hetzel  v.  Bar- 
ter, G9  N.  Y.,  1,  11.  No  rights  of  other  parties  were  injured  by  the 
election  to  reconvert;  and  as  three-fourths  of  the  residuary  interests  had 
been  sold  and  conveyed  to  the  plaintiff  by  those  who  were  entitled  to  the 
proceeds  of  a  sale,  if  one  had  been  made  under  the  power,  and  the  owner 
of  the  remaining  one-fourth  had  assented  to  the  reconversion,  by  exer- 
cising acts  of  ownership,  and  the  purpose  of  the  power  had  become  unat- 
tainable, the  power  to  sell  became  extinguished,  and  the  plaintiff  and 
defendant  already  named  became  owners  as  tenants  in  common. 


CHAP,  v.]  DEETH  V.  HALE  641 


DEETH  V.  HALE. 

In  Chancery  in  Ireland,  before  Lord  Chancellor  Manners,  1809. 

[2  Molloy,  317.] 

Testator  had  ordered  lands  to  be  sold,  and  the  produce  divided  amongst 
certain  persons  of  whom  plaintiff  is  one.  The  other  persons  entitled 
wished  the  property  as  it  was  to  be  divided,  but  plaintiff  filed  this  bill 
for  a  sale. 

Lord  Chancellor  Manners  : 

The  testator  desired  the  land  to  be  sold  and  the  money  shared,  and 
though  the  others  oppose  it,  the  court  must  order  it  to  be  done,  and  the 
costs  of  all  paid  out  of  the  fund.' 

1  Accord:  Halloway  v.  Radcliffe,  1857,  23  Beaven,  165;  Wayne  v.  Fonts, 
1901,  108  Tenn.  145;  Fletcher  v.  Ashburner,  1779,  1  Bro.  C.  C.  497; 
McDonald  v.  O'Hara,  1895,  144  N.  Y.  566;  Bank  of  Ukiah  v.  Rice,  1904, 
143  Cal.  265;  McWilliams  v.  Gough,  1903,  116  Wis.  576;  but  see  Reed  v. 
Underbill,  1851,  12  Barb.  113;  where  it  was  held  that  one  of  the  beneficiaries 
could  pass  his  interest  hy  a  conveyance. 

"Sale  of  land  by  order  of  the  court.  Where  land  is  thus  sold,  and  there 
Is  any  surplus  of  money  after  satisfying  the  purpose  for  which  the  sale 
was  made,  such  surplus  is  always  regarded  and  treated  as  real  estate. 
Cooke  V.  Dealey,  22  Beav.  196;  Jermy  v.  Preston,  13  Sim.  356;  but  see 
Steed  V.  Preece,  L.  R.  18  Eq.  192,  per  Sir  George  Jessel.  Infants'  estates: 
In  general  a  court  of  equity  will  not  direct  a  conversion  of  one  kind  of 
property  belonging  to  an  infant  into  another  kind.  Ex  parte  Phillips,  19  Ves. 
118,  122.  As  to  the  proceeds  of  timber  ordered  to  be  cut  on  an  infant's  estate, 
see  Dyer  v.  Dyer,  34  Beav.  504;  Field  v.  Bro\ATi,  27  Beav.  90.  If  the  infant 
is  owner  in  fee,  the  proceeds  are  realty;  if  he  is  a  life  tenant,  they  are 
personalty.  Lunatics'  estates:  The  court  will  not,  without  sufficient  cause, 
change  the  nature  of  a  lunatic's  property.  Oxenden  v.  Lord  Compton,  2  Ves. 
69,  72 ;  In  re  Badcock,  4  Mylne  &  C.  440.  If  lunatics'  lands  are  sold  by  order 
of  court,  the  surplus  of  the  money  always  remains  real  estate.  In  re  Wharton, 
5  De  Gex,  M.  &  G.  33;  In  re  Sloper,  cited  22  Beav.  198;  In  re  Barker, 
L.  R.  17,  Ch.  Div.  241;  and  see  Smith  v.  Bayright,  34  N.  J.  Eq.  424.  The 
same  rule  prevails  in  sales  ordered  for  purpose  of  partition.  Foster  v. 
Foster,  L.  R.  1  Ch.  Div.  588;  Mildmay  v.  Quicke,  L.  R.  6  Ch.  Div.  553; 
Mordaunt  v.  Benwell,  L.  R.  19,  Ch.  Div.  302."  3  Pomeroy's  Equity  Juris- 
prudence, §  1167,  n.    (2). 


642  WATSON  v.  HUNTER  &  McCLAY  [part  ii. 


PART    II. 

REMEDIES. 


CHAPTER  I. 
INJUNCTIONS. 

Section  1.    Waste. 

JESUS  COLLEGE  v.  BLOOME. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1745. 

[3  Atkyns  262.]  ' 

[Printed   ante  page   115.] 


WATSON  V.  HUNTER  &  McCLAY. 

In  the  Court  of  Chancery  of  New  York,  1821. 

[5  Johnson's  Chancery  169.] 

The  bill  stated,  that  the  plaintiff  had  a  deed  in  fee  for  the  premises 
mentioned,  under  a  declaration  of  trust,  in  favor  of  Samuel  S.  Haight, 
to  be  executed  on  payment  of  1,668  dollars  and  36  cents :  to  secure  which 
payment,  the  fee  of  the  land  was  vested  in  the  plaintiff.  That  the  de- 
fendants were  in  possession,  under  a  lease  for  four  years ;  that  the  princi- 
pal value  of  the  land,  as  a  security,  consisted  in  the  pine  timber  growing^ 
thereon.  That  the  defendants  were  committing  great  waste  in  the  timber, 
and  had  already  cut  down  large  quantities  of  it,  and  were  sawing  it, 
at  their  mills,  for  sale.  That  the  premises  were  a  slender  security  for  the 
debt  due  to  the  plaintiff,  charged  thereon.  Prayer  for  an  injunction,  re- 
straining the  defendants  from  cutting  down  any  more  timber,  or  from, 
removing  that  already  cut  down  and  not  sawed,  and  that  which  was  con- 
verted into  boards  or  plank ;  and  for  general  relief. 

Ward,  for  the  motion. 

The  Chancellor  [Kent.]  Injunctions  to  the  extent  prayed  for  may 
have  been  granted ;  but  as  I  am  not  satisfied  as  to  the  propriety  of  such 
extensive  and  summary  interference,  I  have  been  led  to  look  into  the 

'  For  tlif  rotiicdy  nt  law  and  equity  in  matters  of  waste,  see  Jefferson  v. 
Bisliop  of  Durham,  1707,  1  Bos.  &  P.  105,  per  Eyre,  C.J. ;  Moore  v.  Town- 
shend,  IHfiO,  4  Vroom,  N.  J.,  284,  in  which  Mr.  Justice  Depue  discussed  the 
common  law  of  waste  with  learning  and  accuracy;  Duvall  v.  Waters,  1827, 
1  Bland's  C'hancery,  ."lOO,  in  which  the  learned  Chancellor  outlined  the  juris- 
diction and  remedies  at  common  law  and  equity  and  digested  the  authorities. 

Accord  Iligginbotham  v.  Hawkins,  1870,  L.  R.  7  Ch.  App.  676. 


CHAP.  I.]  WATSON  V.  HUNTER  &  McCLAY  643 

course  of  the  English  authorities  and  practice  on  the  point.  After 
timber  is  cut,  it  ceases  to  be  part  of  the  realty,  and  is  converted  into 
I)orsonal  property,  and  trover  will  lie  for  it.  The  question  is,  whether 
this  Court  ought  to  interfere  in  the  first  instance,  to  control  the  dispo- 
sition of  that  personal  property;  and  that,  too,  without  any  special  or 
extraordinary  necessity  stated  for  such  interference. 

The  practice  of  granting  injunctions,  in  cases  of  waste,  is  to  prevent  or 
stay  the  future  conunission  of  waste;  and  the  remedy  for  waste  already 
committed,  is  merely  incidental  to  the  jurisdiction  in  the  other  case, 
assumed  to  prevent  multiplicity  of  suits,  and  to  save  the  party  the 
necessity  of  resorting  to  trover  at  law.  Thus,  in  the  case  of  Jesus 
College  V.  Bloom,  3  Atk.  262,  Ambl.  54,  a  bill  was  filed  for  an  account  and 
satisfaction  for  waste  in  cutting  down  trees,  and  no  injunction  was 
prayed  for,  and  the  tenant's  estate  had  been  assigned  and  determined. 
Lord  Hardwicke  held,  that  the  bill  was  improper,  and  would  not  lie 
merely  for  satisfaction  for  timber  cut  down,  and  that  an  action  of  trover 
was  the  remedy.  Where  the  bill  was  for  an  injunction  to  prevent 
waste,  and  for  waste  aiready  committed,  the  Court,  to  prevent  a  double 
suit,  would  award  an  injunction  to  prevent  future  waste,  and  decree  an 
account  and  satisfaction  for  what  was  past.  The  ground  for  coming 
into  Chancery,  was  to  stay  waste,  and  not  for  satisfaction  for  the 
damages,  as  the  commission  of  waste  was  a  tort,  and  the  remedy  lay  at 
law.  But  to  prevent  multiplicity  of  suits,  the  Court,  on  bills  for  injunc- 
tion to  stay  waste,  and  where  waste  had  already  been  committed, 
would  make  a  complete  decree,  and  give  the  injured  party  a  satisfaction 
for  what  had  been  done,  and  not  put  him  to  another  action  at  law. 
The  bill,  in  that  case,  was  consequently  dismissed.  In  the  subsequent 
case  of  Smith  v.  Cooke,  3  Atk.  381,  Lord  Hardwicke  observed,  that  if 
the  estate  of  the  lessee  was  determined,  and  he  had  quit,  a  party  could 
not  come  into  equity,  merely  for  an  account  of  timber  cut  wrongfully; 
but  where  he  continued  in  possession,  and  in  a  condition  to  commit 
more  waste,  the  party  might  come  into  equity  to  stay  future  waste,  and 
also  be  entitled  to  an  account  for  the  waste  committed.  So,  again,  in 
the  case  of  Lee  v.  Alston,  1  Vesey,  jun.  78,  the  same  doctrine  was  de- 
clared by  Lord  Thurlow.  A  bill  was  filed  by  a  remainder  man  in  fee, 
against  a  tenant  for  life,  for  an  account  of  timber  cut,  and  for  an  in- 
junction. The  answer  admitted  the  cutting  of  the  timber  wrongfully, 
as  charged,  and  an  account  was  decreed.  It  was  observed,  that  the 
plaintiff,  on  the  discovery  by  the  answer,  might  have  resorted  to  trover 
at  law,  but  he  was  not  obliged  to  do  so,  and  might  have  an  account 
under  the  admission  in  the  answer.  The  Chancellor  referred  to  the 
case  of  Whitfield  v.  Bewit,  2  P.  Wms.  240,  which  was  a  bill  for  an  in- 
junction to  stay  waste,  and  for  an  account  of  timber  cut,  and  in  which 
it  seemed  to  be  held  that  the  right  to  the  timber  cut  might  be  pursued 
in  Chancery,  as  well  as  by  trover  at  law. 

The  same  doctrine  was  declared  by  Lord  Hardwicke,  in  Garth  v. 


644  WATSON  v,  HUNTER  &  McCLAY  [part  ii. 

Cotton,  1  Vesey,  528,  and  that  the  decree  for  an  account  of  the  waste 
already  committed  was  "  an  incident "  to  the  injunction  to  stay  waste. 
It  would  seem,  then,  to  be  a  stretch  of  jurisdiction  to  apply  the  injunc- 
tion to  this  incidental  remedy,  and  to  stay  the  use  or  disposition  of  the 
chattel.  This  would  be  enlarging  the  substituted  remedy  in  this  Court 
much  beyond  the  remedy  at  law;  and  if  it  had  been  the  established  Eng- 
lish practice,  we  should  not  have  been  without  the  most  clear  and  ex- 
plicit cases  in  proof  of  it.  The  recovery  in  this  Court  is  not  the  timber 
itself,  in  specie,  but  damages  for  the  value  of  it;  and  why  should  the 
personal  chattel  be  bound  by  injunction  in  this  ease,  more  than  in  any 
other  case,  where  the  remedy  is  for  a  tort  sounding  in  damages?  This 
Court  will  stay  the  commission  of  waste,  or  the  transfer  of  negotiable 
paper,  in  certain  cases,  in  order  to  prevent  irreparable  mischief;  but 
the  only  mischief  that  can  arise  in  the  present  case,  as  to  the  timber 
already  cut  and  drawn  to  the  mills  of  the  defendants,  is  the  possible 
inability  of  the  party  to  respond  in  damages.  That  is  a  danger  equally 
applicable  to  all  other  ordinary  demands,  and  it  is  not  an  impending  and 
special  mischief,  which  will  justify  this  extraorditiary  preventive  remedy 
by  injunction.  If  the  injunction  could  be  ordinarily  applied  to  waste, 
already  committed,  I  apprehend  we  should  very  rarely  hear  of  a  special 
action  on  the  case,  in  the  nature  of  waste,  in  the  courts  of  common  law. 

In  the  case  of  the  Bishop  of  London  v.  Webb,  1  P.  Wms.  527,  an  in- 
junction was  called  for  against  a  lessee  for  years,  to  prevent  digging  the 
ground  for  brick,  as  it  was  destroying  the  field  and  carrying  away  the 
soil.  The  Lord  Chancellor  said,  "Let  the  defendant  carry  off  the  brick  he 
has  dug,  but  be  enjoined  from  further  digging."  In  Packington's  Case, 
3  Atk.  213,  the  bill  stated,  that  the  defendant  had  cut  down  a  great 
number  of  trees,  and  had  threatened  to  cut  down  and  destroy  them  all,  but 
the  injunction  only  went  to  restrain  him  "from  cutting  down  timber 
trees  growing." 

The  only  case  I  have  met  with,  applicable  to  the  very  point,  is  a  very 
loose  note  of  an  anonymous  case  of  1  Vesey,  jun.  93,  in  which  the  solici- 
tor-general moved  for  an  order  to  prevent  the  removal  of  timber  wrong- 
fully cut  down.  In  what  stage  of  the  cause,  or  upon  what  state  of  plead- 
ings and  proofs,  this  motion  was  made,  does  not  appear.  Lord  Thurlow 
is  said  to  have  observed,  "I  have  no  doubt  about  the  interference  of  this 
Court  to  prevent  waste.  The  only  difficulty  I  have  is,  as  to  what  shall  be 
done  with  the  timber  cut.  Trover  might  be  brought  for  it;  but  as  the 
Register  says  many  orders  of  this  kind  have  been  made,  take  the  order." 

Such  a  case  is  not  a  sufficient  authority  to  extend  the  injunction  to 
the  timber  already  cut.  There  must  be  a  very  special  case  made  out  to 
authorize  me  to  go  so  far,  and  such  cases  may  bo  supposed.  A  lease,  for 
instance,  may  have  been  fraudulently  procured  by  an  insolvent  person, 
for  the  very  purpose  of  plundering  the  timber  under  the  shelter  of  it. 
Perhaps,  in  that  and  like  cases,  where  the  mischief  would  be  irreparable, 
it  might  be  necessary  to  interfere  in  this  extraordinary  way,  and  prevent 


CHAP.  1.]  WATSON  V.  HUNTER  &  McCLAY  645 

the  removal  of  the  timber.  I  do  not  mean  to  be  understood  to  say  that 
the  Court  will  never  interfere,  but  that  it  ought  not  to  be  done  in  ordinary 
cases  like  the  present.  I  shall  accordingly  confine  the  injunction  to  the 
timber  standing  or  growing  at  the  time  of  the  service  of  the  process. 

Order  accordingly.^ 

A  tenant  for  life,  without  impeachment  of  waste,  is  clearly  not  com- 
pellable to  cut  timber  in  such  way  as  a  tenant  in  fee  would  think  most 
advantageous,  but  is  entitled  to  cut  down  anything  that  is  timber.  This 
motion  requires  an  affidavit  pledging  deponent,  that  the  trees  about  to 
be  cut  are  not  fit  for  timber.  It  is  settled  that  a  tree  which  a  tenant  in 
fee,  a(;ting  in  a  husband-like  manner,  would  not  cut,  may  be  cut  by  a 
tenant  for  life,  unimpeachable  of  waste,  provided  that  it  is  fit  for  the 
purpose  of  timber.  A  tenant  for  life  unimpeachable  of  waste  might  cut 
down  all  these  trees,  without  question,  at  law;  and  to  subject  him,  in  this 
court,  to  the  rules  which  a  tenant  in  fee  might  observe,  for  the  purpose 
of  husband-like  cultivation,  would  deprive  him  of  almost  all  his  legal 
rights.  Per  Lord  Eldon,  in  Smythe  v.  Smythe  (1818)  2  Swanst.  251. 

At  law  a  tenant  for  life  without  impeachment  of  waste  has  the  absolute 
power  and  dominion  over  the  timber  upon  the  estate,  but  this  court  con- 
trols him  in  the  exercise  of  that  power,  and  it  does  so,  as  I  apprehend, 
upon  this  ground,  that  it  will  not  permit  any  unconscientious  use  to  be 
made  of  a  legal  power.  It  regards  such  an  unconscientious  use  of  the 
legal  power  as  an  abuse,  and  not  as  a  use  of  it.  When,  therefore,  the 
court  is  called  upon  to  interfere  in  cases  of  this  description,  it  is  boiuid, 
I  think,  in  the  first  place,  to  consider  whether  there  are  any  special  cir- 
cumstances to  affect  the  conscience  of  the  tenant  for  life,  for  in  the  ab- 
sence of  special  circumstances  it  cannot  be  unconscientious  in  him  to 
avail  himself  of  the  power  which  the  testator  has  vested  in  him.  We  have 
then  to  consider  what  are  the  special  circumstances  which  the  Court  will 
regard  as  affecting  the  conscience  of  a  tenant  for  life,  and  I  apprehend 
that  what  is  particularly  to  be  regarded  is  the  intention  of  the  settlor 
or  devisor.  If  by  his  disposition  or  by  his  acts  he  has  indicated  an  in- 
tention that  there  should  be  a  continuous  enjoyment  in  succession  of  that 
which  he  has  himself  enjoyed,  in  the  state  in  which  he  has  himself  en- 
joyed it,  it  must  surely  be  against  conscience  that  a  tenant  for  life,  claim- 
ing under  his  disposition,  should  by  the  exercise  of  a  legal  power,  defeat 
that  intention.  Turner,  L.  J.,  in  Micklethwait  v.  Micklethwait,  (1857) 
1  De  G.  &  J.  504,  524.=^ 

^  "For  past  injuries  or  trespasses,  the  only  remedy  is  an  action  at  law  for 
compensation  in  damages.  Injunction  furnishes  no  relief.  It  is  resorted  to 
and  applied  only  when  an  injury  to  real  or  personal  property  is  threatened, 
and  to  prevent  the  doing  of  a  legal  wrong  when  an  adequate  remedy  cannot 
be  afforded  by  an  action  for  damages."  Per  Wagner,  J.,  in  Owen  i^.  Ford, 
1872,  49  Mo.  436.^ 

-  See  language  of  Jessel,  M.R.,  in  Baker  v.  Sebright,  1879,  L.  R.  13  Ch.  Div. 
179. 


646  LOKD  BERNAED'S  CASE  [part  ir. 

PETETSON  V.  SHELBY. 

In  Chancery,  1577. 

[Choyce  Cases  in  Chancery  117.] 

The  plaintiff  hath  a  lease  in  reversion  granted  unto  him  of  certain 
lands  in  the  defendant's  occupation  by  lease  almost  expired  within  a 
year,  and  the  plaintiff  hath  Wood  and  Timber  granted  to  him,  and  the 
defendant  having  no  authority  to  sell  the  said  woods,  doth  cut  down 
the  same  and  make  waste.  Therefore  a  siibpoena  awarded  against  him 
to  show  cause  why  an  injunction  should  not  be  granted  against  him. 


KING  V.  BLUNDAVILE. 

In  Chancery,  1608-09. 

iTothill  83.] 

The   defendant   having  an   estate   for   life   without   impeachment   of 
waste,  was  ordered  not  to  do  waste  both  upon  woods  and  houses. 


WILLIAMS  V.  DAY. 
In  Chancery,  before  Lord   Chancellor  Nottingham,  1680. 

[2  Chancery  CasesJ] 

The  Lord  Chancellor  declared,  that  he  would  stop  pulling  down  Houses, 
or  Defacing  a  Seat  by  Tenant  after  Possibility  of  Issue  extinct,  or  by 
Tenant  for  Life,  who  was  dispunishable  of  Waste  by  express  Grant,  or  by 
Trust. 


LORD  BERNARD'S  CASE. 

In  Chancery,  before  Lord  Chancellor  Cowper,  1716. 

\ Precedents  in  Chancery  454.] 

Lord  Bernard  was  tenant  for  life,  without  impeachment  of  waste; 
and  tliis  bill  was  brought  against  him  by  those  in  remainder,  for  an  in- 
juiictioii  to  stay  his  committing  of  waste;  and  by  the  proofs  in  the  cause 
it  af)f)oared,  that  he  had  almost  totally  defaced  the  mansion  house,  by 
pulling  down  great  part,  and  was  going  on  entirely  to  ruin  it;  where- 


CHAP.  I.]  ROLT  V.  LORD  SOMERVILLE  647 

upon  the  court  not  only  granted  an  injunction  against  him,  to  stay  his 
committing  further  waste,  but  also  ordered  a  commission  to  issue  to  fix 
commissioners,  whereof  he  to  have  notice,  and  to  appoint  three  on  his 
part;  or,  in  default  thereof,  the  six  commissioners  to  be  named  ex 
parte,  to  take  a  view,  and  to  make  a  report,  of  the  waste  committed; 
and  that  he  should  be  obliged  to  rebuild,  and  put  it  in  the  same  plight 
and  condition  it  was  at  the  time  of  his  entry  thereon :  and  it  was  said, 
that  the  like  injunctions  had  frequently  been  granted  in  this  court;  and 
that  the  clauses  of  without  impeacliment  of  waste  never  were  extended 
to  allow  the  very  destruction  of  the  estate  itself,  but  only  to  excuse  from 
permissive  waste;  and  therefore  such  a  clause  would  not  give  leave  to 
sell  and  cut  down  the  trees  which  were  for  the  ornament  or  shelter  of  a 
house,  much  less  to  destroy  or  demolish  the  house ;  and  so  it  was  ruled  in 
my  Lord  Nottingham's  time,  2  Chan,  Cases,  32.' 


ROLT  V.  LORD  SOMERVILLE. 
In  Chancery^  before  Lord  Chancellor  Hardvvicke,  1737. 

[2  Equity  Cases  Abridged,  759.] 

The  case  in  effect  was  thus :  A  very  considerable  real  estate  was  limited 
to  Mrs.  Rolt  (who  afterwards  married  the  defendant  the  Lord  Somerville) 
for  life,  without  impeachment  of  waste,  remainder  to  the  plaintiff  Rolt 
for  life,  without  impeachment  of  waste,  with  several  remainders  over. 
The  defendant  the  Lord  Somerville,  to  make  the  most  of  this  estate  dur- 
ing the  life  of  his  wife,  pulled  down  several  houses  and  out-buildings 
upon  the  estate,  and  sold  the  same,  and  also  took  up  lead  water  pipes  that 
were  laid  for  the  conveyance  of  water  to  the  capital  messuage,  and  dis- 

'See  Bishop  of  London  v.  Web,  1718,  1  P.  Wms.  527;  Anonymous,  1729, 
Mosely,  237;  Peirs  v.  Peirs,  1750,  1  Ves.  Sr.  522. 

In  Morris  v.  Morris,  1885,  .3  De  Gex  &  Jones,  323,  a  tenant  for  life  built  a 
new  manor  house  out  of  the  materials  from  an  old  house  which  he  had  torn 
down  in  a  suit  brought  by  the  remainderman  for  an  account  on  the  ground  of 
waste,  Lord  Jiistice  Turner  said,  at  page  328 :  "I  do  not  rest  my  decision  in 
this  case  upon  the  fact  of  the  estate  having  been  improved  by  the  building  of 
the  new  mansion  house  and  the  pulling  down  of  the  old  one;  for  I  am  not  at  all 
satisfied  that  the  question  of  improvement  or  no  improvement  is  one  by  which 
the  court  ought  to  be  guided.  I  apprehend  that  the  principle  upon  which  the 
court  proceeds  in  these  cases  is,  that  the  tenant  for  life  of  an  estate  is  liable  to 
account  in  equity  for  profit  derived  by  him  from  an  improper  use  of  his  legal 
powers  in  committing  equitable  waste.  If,  therefore,  the  materials  of  this 
house  had  been  sold,  and  the  deceased  tenant  for  life  had  received  the  proceeds, 
in  my  opinion  this  \vould  have  been  a  case  for  an  account.     But  all  that  can 


648  EOLT  V.  LORD  SOMERVILLE  [part  ii. 

posed  thereof,  and  he  also  cut  down  several  groves  of  trees  that  were 
planted  for  the  shelter  or  ornament  of  the  capital  messuage.  Upon  this 
a  bill  was  brought  by  the  plaintiff  to  compel  the  defendant  to  account 
for  the  money  raised  by  the  particulars  before  mentioned,  and  to  put  the 
estate  in  the  same  plight  and  condition  that  it  was  before.  To  this  the 
defendant  demurred,  and  thereby  insisted  that  this  waste  was  committed 
by  tenant  for  life  without  impeachment  of  waste,  and  therefore  he  was 
not  liable  to  be  called  to  an  account  for  what  he  had  done  either  in  law 
or  equity,  and  if  he  was,  yet  the  plaintiff  could  not  call  him  to  an  account, 
because  he  was  not  a  remainderman  of  the  inheritance. 

Lord  Chancellor  Hardwicke.  Though  an  action  of  waste  will  not  lie 
at  law  for  what  is  done  to  houses,  or  plantations  for  ornament  or  con- 
venience, by  tenant  for  life  without  impeachment  of  waste,  yet  this  court 
hath  set  up  a  superior  equity,  and  will  restrain  the  doing  such  things  on 
the  estate.  In  Lord  Bernard's  Case  the  court  restrained  him  from  going 
on,  and  ordered  the  estate  to  be  put  in  the  same  condition.  In  Sir  Blun- 
del  Charleton's  Case  the  Master  of  the  Eolls  decreed  that  no  trees  should 
be  cut  down  that  were  for  the  ornament  of  the  park ;  but  Lord  Chancellor 
King  reversed  that,  and  extended  it  only  to  trees  that  were  planted  in 
rows.  My  only  doubt  is,  as  to  the  trees  that  have  been  cut  down,  for  if 
this  bill  had  been  brought  before  such  trees  had  been  cut  down  as  were 
for  the  ornament  or  shelter  of  the  estate,  this  court  would  have  inter- 
posed; but  here  the  mischief  is  done,  and  it  is  impossible  to  restore  it  to 
the  same  conditions  as  to  the  plantations,  and  therefore  it  can  lie  in  sat- 
isfaction only ;  and  I  cannot  say  the  plaintiff  is  entitled  to  a  satisfaction 
for  the  timber  which  is  a  damage  to  the  inheritance,  yet  as  to  the  pulling 
down  the  houses  and  buildings,  and  laying  the  lead  pipes,  they  may  be 
restored,  or  put  in  as  good  condition  again.  In  the  case  of  my  Lord 
Bernard  there  were  directions  for  an  issue  at  law  to  charge  his  assets 
with  the  value  of  the  damages,  he  not  having  performed  the  decree  in  his 
lifetime.  The  demurrer  was  allowed  as  to  satisfaction  on  account  of  the 
timber,  but  overruled  as  to  the  rest. 

be  said  in  the  present  case,  as  to  any  benefit  that  has  been  derived  by  the 
deceased  tenant  for  life,  is  this,  that  he  enjoyed  the  use  of  the  materials  of 
the  old  house  during  his  life,  in  a  diiferent  state  from  that  in  which  they 
originally  existed  on  the  estate.  They  remained  on  the  estate,  but  they  re- 
mained as  materials  attached  to  a  new  house,  and  not  to  the  original  house 
to  which  they  were  formerly  attached;  and  I  do  not  find  any  evidence  in  the 
case  that  there  has  been  any  sale  of  the  materials,  or  any  other  profit  derived 
by  the  tenant  for  life,  than  by  the  enjoyment  of  the  materials  in  an  altered 
state.  1  think  that  such  enjoyment  is  not  the  subject  of  an  account  of  profits, 
but  that  the  right  to  such  an  account  arises  only  where  the  tenant  for  life  has 
disposed  of  the  materials  and  received  the  j)rofits.  I  am  of  opinion,  there- 
fore, that  this  part  of  the  bill  was  rightly  dismissed." 


CHAP.  I.]  PACKINGTON'S  CASE  649 

PACKINGTON'S  CASE. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1744. 

[3  Atkyns  215.] 

Sir  Herbert  Packington,  tenant  for  life,  without  impeachment  of  waste, 
of  an  estate  at  Westwood,  in  Worcestershire,  being  out  of  the  kingdom,' 
his  agent  was  made  defendant  to  a  bill  brought  to  stay  waste  by  Mr. 
Packington,  son  of  Sir  Herbert,  and  first  tenant  in  tail,  and  has  put  in  an 
answer. 

The  motion  now  was,  for  an  injunction  to  stay  Sir  Herbert  Packing- 
ton's  agent  from  cutting  down  trees  in  the  park  at  Westwood,  which  are 
either  an  ornament  or  shelter  to  the  mansion  house. 

Lord  Chancellor.  It  might  be  for  the  interest  of  private  families 
if  the  common  law  had  not  given  so  large  a  power  to  tenant  for  life, 
without  impeachment  of  waste,  vide  Payne  v.  Dor,  1785,  1  Durn.  &  East, 
55,  equal  to  a  tenant  in  fee ;  but  the  common  law  thought  it  for  the 
interest  of  the  public,  as  timber  might  thereby  circulate  for  shipping 
and  other  uses. 

But  this  court  has  restrained  their  power  greatly,  in  comparison  of 
what  it  was  formerly. 

The  first  case  came  before  Lord  Cowper,  of  Vane  v.  Bernard,  1816,  2 
Vern.  738,  where  the  defendant  was  restrained  from  pulling  down  Raby 
Castle. 

The  court  has  gone  farther,  and  has  restrained  such  tenant  for  life 
from  cutting  down  timber,  either  for  ornament  or  shelter  of  the  house; 
and  farther  still  in  the  case  of  Charlton  v.  Charlton,  in  extending  it  to 
the  case  of  a  park. 

There  was,  indeed,  a  difference  of  opinion  between  Lord  Chancellor 
King,  and  the  Master  of  the  Rolls,  but  only  in  part,  for  Lord  King 
continued  the  injunction  as  to  trees  for  ornament,  or  shelter,  but  dis- 
solved it  as  to  straggling  trees. 

It  is  very  proper  for  the  court  to  preserve  trees  that  are  a  shelter  to  the 
mansion  house. 

In  the  present  case,  only  three  oaks  have  been  cut  down,  and  if  there 
was  no  intention  to  commit  further  waste,  it  would  be  material,  but  thia 
appears  to  be  but  the  beginning  of  waste;  for  Sir  Herbert  Packington's 

^  The  plaintiff  alleged,  that  the  defendant,  Sir  H.  Packington,  had  cut  down 
a  great  number  of  trees,  and  had  threatened  to  cut  down  and  destroy  them 
all ;  that  Sir  H.  Packington's  agent  had  agreed  for  the  sale  of  2,000  trees, 
and  that  in  consequence  thereof  some  trees  had  been  actually  felled.  Note, 
it  does  not  appear  from  the  allegations  of  the  plaintiff  in  the  present  motion, 
whether  the  agent  had  admitted  this  fact  by  his  answer.  Sir  H.  Packington'a 
answer  had  not  come  in.    Reg.  Lib.  B.  1744,  fol.  325. 


<550  LANSDOWNE  v.  LANSDOWNE  [part  ii. 

letter  has  been  read  in  1741  (the  purport  of  this  letter  does  not  appear  in 
the  Register's  book  in  the  place  above  cited),  whilst  he  was  abroad,  in 
which  he  says,  if  his  son  will  not  join  with  him  in  cutting  off  the  intail, 
he  will  give  orders  for  cutting  down  all  the  ornamental  timber  trees. 

The  question  is,  whether  these  are  grounds  for  an  injunction  to  stay 
waste  ? 

The  first  objection  is,  that  these  trees  grow  in  a  wood,  and  have  arisen 
naturally,  and  by  accident,  and  not  from  planting. 

But  I  do  not  think  this  will  hold,  because,  whether  trees  grow  natural, 
or  were  planted,  if  they  serve  as  an  ornament,  or  shelter,  it  amounts  to 
the  same  thing;  and  it  is  very  probable  the  situation  of  the  house  was 
chosen  for  the  sake  of  cutting  ridings  and  vistas  through  the  woods; 
and  I  can  mention  two  of  this  kind  of  my  own  acquaintance,  Hamp- 
stead,  a  seat  of  Lord  Craven's,  and  another  in  Essex. 

I  will  restrain  the  defendant,  therefore,  from  cutting  down  trees  in 
lines,  or  avenues,  or  ridings  in  the  park ;  and  likewise  from  cutting  down 
trees  that  are  not  of  a  proper  growth  to  be  cut. 

Upon  a  suggestion  that  this  might  create  disputes,  as  to  what  were  of 
proper  growth,  and  that  very  little  young  timber  grows  in  this  park, 
his  Lordship  left  out  the  last  part  of  the  order,  and  as  to  the  other  granted 
the  injunction.' 


LANSDOWNE  v.  LANSDOWNE. 

In  Chancery,  before  Sir  Thomas  Plumer,  V.  C,  1815. 

[1  Maddoch,  116.] 

The  Vice-Chancellor.'  Upon  this  demurrer,  two  points  are  to  be 
considered :  1st.  How  the  case  stood  as  to  the  deceased  Marquis  ?  2dly. 
How  the  case  stands  as  to  his  representatives?  The  late  Marquis  was 
tenant  for  life,  without  impeachment  of  waste,  and  as  such  had  a  right 
at  law  to  cut  timber  on  the  estate,  and  had  a  property  in  the  trees,  but 
having  abused  that  power  by  cutting  ornamental  trees,  and  trees  not  ripe 
for  cutting,  a  court  of  equity  says,  he  shall  not  do  these  things  with 
impunity,  but  interposes  to  restrain  the  legal  right;  and  equity  not  only 
restrains  him  from  doing  further  waste,  but  directs  an  account  of  the 
waste  done,  and  will  not  suffer  the  individual  to  pocket  the  produce  of 
the  wrong,  hut  directs  the  money  produced  by  siich  waste  to  be  laid 
up  for  the  benefit  of  those  who  succeed  to  the  estate. 

Mil  C'odin  V.  CoHhi,  1821,  Jacob,  70,  Lord  Eldon  said:  The  court  does  not 
protect  timber  because  it  is  ornamental,  but  it  protects  it,  if  it  was  planted 
for  ornament,  whether  it  is  or  is  not  ornamental, 

^Oiily  the  <)|)irii(jii  is  given. 


CHAP.  I.]  LANSDOWNE  v.  LANSDOWNE  651 

A  bill  was  filed  against  the  late  Marquis,  by  Wilmot  and  Baring,  the 
trustees  to  preserve  contingent  remainders,  and  not  by  a  person  having 
the  next  estate  of  inheritance;  no  such  person  appearing;  but  there  were 
contingent  remainders,  and  the  present  Marquis,  the  n^xt  tenant  for 
life,  was  entitled  to  the  timber  cut,  or  the  substitute  for  it.  The  late 
Marquis  did  not  demurr  to  that  bill.  Many  of  the  objections  taken  to 
this  supplemental  bill  would  have  applied  to  the  bill  filed  against  the 
late  Marquis.  They  obtained  an  injunction,  and  thereby  their  competency 
to  sustain  the  suit  was  sanctioned ;  and  Garth  and  Cotton,  1753,  1  Dick, 
182,  certainly  was  a  conclusive  authority  in  support  of  that  suit.  The 
injunction  would  not  have  been  granted  if  the  trustees  had  no  right  to 
file  such  a  bill.  What  is  said  in  Jesus  Coll.  and  Bloom,  as  to  not  enter- 
taining a  bill  after  the  estate  of  the  tenant  for  life  is  determined,  applies 
only  to  cases  where  legal  waste  has  been  committed,  and  where  the 
party  is  liable  at  law  in  respect  of  the  waste  committed;  but  here  it  was 
equitable  waste,  as  to  which  a  court  of  law  gives  no  remedy.  Lord 
Hardwicke^  in  that  case,  says,  "the  party  ought  to  be  sent  to  law" ;  which 
shows  he  was  alluding  to  legal  waste.  The  party  had  for  such  waste 
a  remedy  under  the  statute  of  Marlbridge,  52  Henry  3,  c.  23,  or  might 
have  brought  an  action  of  trover;  but  the  court  never  sends  a  party  to 
law  in  cases  of  equitable  waste ;  they  being  exclusively  of  equitable  cog- 
nizance. As  against  the  late  Marquis,  therefore,  a  bill  might  have  been 
filed,  though  no  injunction  were  prayed.  This  court  will  not  permit  a 
man  to  commit  equitable  waste,  and  retain  the  produce  of  the  injury, 
which  is  recoverable  in  no  other  court.  Eelief  is  given  for  the  benefit  of 
those  who  come  after.  The  case,  therefore,  of  Jesus  College 
and  Bloom  is  distinguishable  from  the  present.  In  Garth  and 
Cotton,  Lord  Hardwicke,  alluding  to  his  decision  in  that  case,  says,  "It 
affords  no  conclusive  argument  that  a  bill  for  an  account  of  waste  can- 
not be  maintained  without  praying  an  injunction."  Dick,  p.  211.  The 
Marquis  died,  after  having  sold,  and  converted  to  his  use  the  money 
produced  by  his  wrongful  act ;  and  upon  general  principles,  independent 
of  decision,  the  assets  ought  to  be  liable  to  pay  in  respect  of  his  conduct, 
such  assets  having  been  augmented  by  it. 

It  has  been  urged,  that  if  the  Marquis  had  committed  legal  waste,  and 
died,  his  representatives  would  not  have  been  answerable,  it  being  a 
maxim.  Actio  personalis  moritur  cum  persona,  and  that  the  same  doc- 
trine applies,  by  analogy,  to  cases  of  equitable  waste.  Let  us  see  in  what 
manner  this  maxim  has  been  interpreted  even  at  law.  In  Hambly  v. 
Trott,  1776,  Cowp.  376,  Lord  Mansfield  says,  "  "When  the  cause  of 
action  is  money  due,  or  a  contract  to  be  performed,  gain  or  acquisition  of 
the  testator  by  the  work  and  labor,  or  property,  of  another,  or  a  promise 
of  the  testator,  express  or  implied;  where  these  are  the  causes  of  action, 
the  action  survives  against  the  executor.  But  where  the  cause  of  action 
is  a  tort,  or  arises  ex  delicto,  supposed  to  be  by  force,  and  against  the 
King's  peace,  there  the  action  dies,  as  battery,  false  imprisonment,  tres- 


652  LANSDOWNE  v.  LANSDOWNE  [part  ii. 

pass,  words,  nuisance,  obstructing  lights,  diverting  a  water-course,  es- 
cape against  the  sheriff,  and  many  other  cases  of  the  like  kind.  If  it  is 
a  sort  of  injury  by  which  the  offender  acquires  no  gain  to  himself  at  the 
expense  of  the  sufferer,  as  beating,  or  imprisoning  a  man,  etc.,  there,  the 
person  injured  has  only  a  reparation  for  the  delictum  in  damages  to  be 
assessed  by  a  jury.  But  where,  besides  the  crime,  property  is  acquired 
which  benefits  the  testator,  there  an  action  for  "the  value  of  the  property 
shall  survive  against  the  executor.  As,  for  instance,  the  executor  shall 
not  be  chargeable  for  the  injury  done  by  his  testator  in  cutting  down 
another  man's  trees;  but  for  the  benefit  arising  to  his  testator  for  the 
value  or  sale  of  the  trees,  he  shall.  So  far  as  the  tort  itself  goes,  an 
executor  shall  not  be  liable ;  and  therefore  it  is,  that  all  public  and 
private  crimes  die  with  the  offender,  and  the  executor  is  not  chargeable; 
but  so  far  as  the  act  of  the  offender  is  beneficial,  his  assets  ought  to  be 
answerable ;  and  his  executors  therefore  shall  be  charged." 

This  I  take  to  be  a  just  exposition  of  the  qualifications  under  which  the 
maxim.  Actio  personalis  moritur  cum  persona,  is  received  at  law;  and 
if  eqi;ity  is  to  decide  in  analogy  to  a  court  of  law,  the  question  in  the 
present  case  will  be.  Whether,  by  the  equitable  waste  committed  by 
the  late  Marquis,  he  derived  any  benefit;  or,  whether  it  was  a  naked 
injury,  by  which  his  estate  was  not  benefited?  It  is  clear  it  was  ben- 
efited; and  as  at  law  if  legal  waste  be  committed,  and  the  party  dies, 
an  action  for  money  had  and  received  lies  against  his  representative, 
so  upon  the  same  principle,  in  cases  of  equitable  waste,  the  party  must, 
through  his  representations,  refund  in  respect  of  the  wrong  he  has 
done.  "It  would,"  says  Lord  Cowper,  in  Bishop  of  Winchester  v.  Knight, 
1  P.  Wms.  407,  "be  a  reproach  to  equity  to  say,  where  a  man  has  taken 
my  ore  or  timber,  and  disposed  of  it  in  his  lifetime,  and  dies,  that  in 
this  case  I  must  be  without  remedy."  It  has  been  argued,  that  as 
when  legal  waste  is  committed,  and  there  are  no  persons  in  being,  or 
appearing,  who  coidd  authorize  it,  or  bring  an  action  in  respect  of  the 
waste,  the  wrong  is  without  remedy;  so  here,  there  being  no  persons 
in  esse,  or  appearing,  when  the  waste  was  committed,  who  could  authorize 
it,  a  bill  will  not  lie  in  respect  of  such  waste ;  but  it  signifies  not,  whether 
such  person  were  in  esse  or  not,  for  waste  of  this  description  could  not 
be  authorized;  such  destruction  cannot  be  authorized;  the  court  says 
•it  shall  not  be  done.  The  produce  of  the  waste  is  laid  up  for  the 
benefit  of  the  contingent  remaindermen.  To  adopt  such  an  analogy 
to  the  law,  in  a  case  where  relief  is  given  against  the  law,  would  be 
singular. 

Upon  these  grounds  I  think  the  supplemental  bill  for  an  account 
by  the  new  trustees,  the  tenant  for  life,  and  tenant  of  the  inheritance, 
was  properly  brought.  The  trustees  wore  the  proper  persons  to  file 
the  bill  against  the  late  Marquis,  and  the  present  plaintiffs  were  the 
proj)er  persons  to  file  the  supy)lemental  bill,  though  one  of  the  plain- 
tiffs was  not  in  esse  when  the  first  bill  was  filed,  inasmuch  as  the  money 


CHAP.  I.]         ORMONDE  V.  KYNERSLEY  a\d  others  653 

produced  by  the  waste  is  not  to  be  pocketed,  but  to  be  laid  up  for  the 
benefit  of  those  who  in  succession  will  take  the  estate. 

I  think  the  demurrer  objectionable  on  other  grounds;  but  I  decide 
this  case  upon  the  broad  principle,  that  where  equitable  waste  has  been 
committed,  which  never  could  have  been  authorized,  the  court  has  juris- 
diction to  make  the  representatives  of  the  party  committing  such  waste 
accountable. 

Demurrer  overruled. 


MAEQUIS  OF  OEMONDE  v.  KYNEESLEY  and  others. 

In  Chancery,  before  Sir  John  Leach,  V.  C,  1820. 

[5  MaddocJc  369.] 

This  bill  was  filed  by  the  remainderman  against  the  executor  of  the 
deceased  tenant  for  life,  whose  estate  had  been  unimpeachable  of  waste, 
for  an  account  of  the  produce  of  ornamental  timber,  which  had  been 
cut  by  the  tenant  for  life. 

The  plaintiff  early  in  1808  had  filed  his  bill  against  the  tenant  for 
life  himself  for  the  same  purposes,  and  had  obtained  an  injunction. 
The  tenant  for  life  put  in  his  answer  to  that  bill  on  the  1st  of  June, 
1808,  and  by  consent  an  order  was  made  on  the  31st  of  July,  1808, 
referring  it  to  the  master  to  inquire  as  to  the  ornamental  and  other 
timber  which  had  been  cut  by  the  tenant  for  life. 

This  order  was  never  acted  upon;  and  the  tenant  for  life  lived  till 
April,  1815,  without  any  further  proceeding  being  had  in  the  cause. 

The  present  bill  was  not  supplemental  to  that  suit,  but  to  a  subse- 
quent original  bill.  The  case  was  much  argued.  I  was  not  present  at 
the  argument,  but  am  informed  that  it  was,  first,  contended  that  such 
a  bill  could  not  be  filed ;  and  the  following  cases  were  cited,  viz. :  Bishop 
of  Winchester  v.  Knight,  1  P.  Wms.  406;  Garth  v.  Cotton,  1  Dick.  183,  s. 
c.  3  Atk.  751,  and  1  Ves.  524,  546 ;  Hambly  v.  Trott,  Cowp.  376 ;  Lee  v. 
Alston,  1  Bro.  C.  C.  194 ;  Marquis  of  Lansdowne  v.  Marchioness  Dowager 
of  Lansdowne,  1  Maddock,  116.  And  secondly,  that  as  no  timber  had  been 
cut  since  the  injunction  in  1808,  and  the  plaintiff  had  not  proceeded  in 
the  former  cause,  he  must  be  taken  to  have  waived  his  claim  in  that 
respect. 

The  Vice-Chancellor  held,  that  though  there  was  much  ground  for 
the  latter  defense,  yet,  as  it  was  not  made  by  the  answer,  he  could 
not  notice  it.  Upon  the  general  point,  whether  such  a  bill  could  be 
maintained.  His  Honor  stated:  That  the  restraint  upon  the  legal  owner 
as  to  equitable  waste  was  to  be  considered  as  founded  on  a  breach  of  that 
trust  and  confidence  which  the  devisor  reposed  in  the  tenant  for  life,  that 


654  WOMBELL  v.  BELASYSE  [part  ik 

he  would  use  his  legal  estate  only  for  the  purpose  of  fair  enjoyment. 
That  it  was  a  trust  implied  in  equity  from  the  subsequent  limitations, 
and  from  the  presumed  intention  of  the  testator  that  he  meant  an  equal 
benefit  to  all  in  succession.  That  in  all  cases,  the  assets  of  a  testator  were 
answerable  for  a  profit  made  by  breach  of  trust :  and  an  account  was  de- 
creed according  to  the  prayer  of  the  bill. 


WOMBELL  V.  BELASYSE. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1825. 

[6  Vesey  (Sumner's  edition)  110  a,  note.'] 

The  Lord  Chancellor.  The  doctrine  of  the  court  is  extremely  well 
settled.  If  the  object  in  planting  timber,  or  in  leaving  timber  standing, 
is  ornament,  whether  that  object  is  effected,  whether  the  effect  is  truly 
ornamental,  or  the  most  absurd  exhibition  that  ever  was  produced,  this 
court  will  protect  that  timber;  and  the  protection  is  not  confined  to 
trees  planted,  or  left  standing,  as  ornamental  to  a  house  or  park:  nor 
does  it  depend  on  the  distance  from  the  mansion,  but  I  do  not  recollect 
that  it  has  gone  to  this  extent,  that,  if  a  ride  is  made  through  a  wood,  in 
which  wood  the  proprietor  has  been  in  the  habit  of  cutting  timber  for 
the  use  and  repair  of  the  mansion,  that  ride  shall  protect  the  whole  wood 
from  being  cut  at  the  time  of  making  the  ride,  and  in  all  future  times : 
as,  if  the  purposes  of  that  ride  can  be  as  well  consulted  by  leaving  a  tenth 
part  of  the  wood  standing,  it  would  be  most  absurd  to  require  that  the 
whole  should  be  left.  Neither  do  I  recollect  any  issue  ever  directed  upon 
this;  and  in  directing  an  issue  attention  must  be  had  to  the  interests 
of  all  parties;  that,  if  the  injunction  restrains  the  legal  right  to  cut 
timber,  security  shall  be  given,  that  in  case  of  the  death  of  him,  whose 
enjoyment  of  that  legal  right  may  have  been  restrained  improperly,  his 
estate  shall,  to  the  extent  of  the  benefit  he  would  have  derived  from  the 
exercise  of  that  right,  be  reimbursed  by  those  who  restrained  him.  I 
think,  also,  that  two  issues  would  be  necessary;  not  only  whether  the 
timber  was  planted,  or  left  standing,  for  ornament,  but  also,  how  far, 
consistently  with  that  object,  trees  might  be  cut;  as  I  cannot  hold  that 
the  effect  of  making  a  ride  through  a  wood  is  to  be,  that  an  axe  shall 
not  be  laid  to  the  root  of  a  tree  in  that  wood;  which  would  be  carrying 
this  doctrine  to  an  extent  to  which  it  has  never  yet  gone. 

In  framing  the  issue  another  thing  also  must  be  attended  to;  by  whom 
the  trees  were  planted  or  left  standing  for  ornament:  as,  if  they  had 
been  planted  by  tenant  for  life  without  impeachment  of  waste,  unless 
afterwards  left  standing  with  iIkiI  view  by  some  person  having  the  inheri- 
tance, they  would  not  be  entitled  to  this  protection.  • 


CHAP.  I.]  ANONYMOUS  655 

WAKERYNG  v.  BAILLIE. 

In  Chancery,  1461-67.  ' 

[1  Calendars  in  Chancery  LXII.] 

To  compel  the  defendant  Baillie  to  make  an  estate  to  the  said  hospital 
and  to  stay  waste,  the  complainant  besought  "the  right  worshipfull  and 
revent  Fadir  in  God  the  bishop  of  Excestre  Chanceller  of  England,"  upon 
the  following  facts : 

It  appeared  that  John  Wakeryng  was  master  of  the  hospital  of  St. 
Bartholomew  in  West  Southfield;  that  the  defendant  Baillie  was  feoffee 
in  trust  of  an  estate  "  called  Dokettys  "...  amortized  to  the  said 
hospital  "to  thintent  to  fynde  a  prest  p'petually  to  syng  and  office  in  a 
chapell  then  all  of  newe  made";  that  the  said  Baillie  "knowyng  well  the 
said  place  called  Dokettys,  w'out  the  seasonable  wode  growyng  uppon  the 
same  is  not  of  the  yerly  value  to  fynde  a  prest  honestly  to  syng  and 
office  in  the  said  chapell  and  to  kepe  thobsvancez  above  specified,  hath 
sold  and  doo  feld  great  part  of  the  saide  wode  and  in  hasty  syme  poposeth 
to  doo  felle  the  most  part  of  all  the  same  wode  to  the  value  of  xl.  ti.  and 
tanspose  the  said  place  with  thappurtenancez  agayn  thintent,  desires,  and 
devout  willes  of  the  said  Richard  and  Robert  above  specified,  and  agayn 
all  right,  reason,  and  conscience.  Please  it  your  good  and  gacious  lord- 
ship to  considere  the  pymsses,  and  to  grant  a  writ  subpena  direct  to  the 
said  Nicholas  to  appere  by  fore  your  said  lordship  at  a  ctain  day  by 
you  to  be  lymytted,  there  to  be  ruled  to  relese  his  right  in  the  said 
place  with  thappurtenancez  to  his  said  ofeffees  to  thenlent  that 
he  may  have  noe  power  to  do  noe  more  wast  upon  the  said  place,  and 
to  make  sufficient  and  due  satisfaccion  for  the  said  wode  so  sold  and 
feld,  as  all  good  consciens  requireth,  and  that  the  said  cofeffees  may  ac- 
complyssh  and  fulfille  the  devout  willes  and  desires  aforesaid,  for  the 
love  of  God  and  in  wey  of  charita." 


ANONYMOUS. 
In  Chancery. 

[Carij  27.] 


A  lease  is  made  for  life,  the  remainder  for  life,  the  remainder  over 
in  fee;  the  first  lessee  maketh  waste;  and  because  he  in  the  fee  hath  no 
remedy  by  the  common  law,  and  waste  is  a  wrong  prohibited,  he  shall  be 
holpen  in  Chancery^,  Crompton  48,  6. 


€56  SKELTON  v.  SKELTON  [part  n. 

HALE  V.  HALE. 
'    In-  Chancery  before  Lord  Keeper  Somers,  1692. 
[Precedent  in  Chancery  51.] 

A.  conveys  a  term  for  years  to  J.  S.  upon  trust,  to  raise  £1500  for  such 
child  or  children  of  A.  as  should  be  living  at  the  time  of  his  death;  A. 
dies,  leaving  no  child,  his  wife  ensient  with  a  daughter,  which  was  after- 
wards born. 

My  Lord  Keeper  declared  that  this  posthumous  daughter  is  a  child 
living,  at  the  death  of  A.  within  the  meaning  of  the  trust,  and  that  a 
direction  of  a  trust  is  not  to  be  so  strictly  construed,  as  a  limitation  of  an 
estate  at  law.'  And  one  Lutterel's  case  was  cited  in  my  Lord  Bridgeman''s 
time,  where  a  bill  was  exhibited  on  behalf  of  an  infant  in  ventre  sa  mere 
to  stay  waste,  and  an  injunction  granted  upon  it.^ 


SKELTON  V.  SKELTON. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1677. 

[2  Swanston  170.] 

The  bill  was  exhibited  against  a  jointress  to  stay  maresme  in  felling 
limber,  and  notwithstanding  the  defendant's  answer,  who  claimed  the 
inheritance  by  a  deed  which  the  plaintiff  controverted,  an  injunction 
was  obtained  until  hearing;  and  now,  at  the  hearing,  she  proved  her- 
self to  be  jointress  in  tail;  and  it  was  urged  by  Mr.  Attorney,  that' 
the  defendant  being  a  jointress,  within  the  statute  of  11  H.  7,  which 
restrains  all  power  of  alienation  by  fine  or  discontinuance,  she  ought 
likewise  to  be  restrained  in  equity  from  committing  waste,  which  is  also 
in  disherison  of  the  heir.  But  this  I  would  by  no  means  allow,  that 
equity  sho\ild  enlarge  the  restraints  or  the  disabilities  introduced  by 
act  of  Parliament;  and  as  to  the  granting  of  injunctions  to  stay  waste, 

'"There  have  been  several  cases  put  which  have  never  been  determined,  as 
that  of  a  child  in  ventre  sa  mere,  but  always  said  arguendo,  and  I  should 
make  no  scruple  in  such  a  case  to  grant  an  injunction."  Per  Lord  Hard- 
wiCKE,  in  Robinson   v.  Litton,  1744,  3  Atk.  209,  211. 

"J3ut  the  books  go  further,  and  say  a  bill  may  be  brought  for  an  injunction 
to  stay  waste  on  behalf  of  an  infant  en  ventre  sa  mere.  And  so  is  Mus- 
grave  v.  Parry,  2  Vern.  710,  which  is  liable  to  much  more  difficulty,  for  that 
must  be  as  amicus  curiae  on  the  iniborn  child's  behalf."  Per  Lord  Haed- 
WICKE,  ill  rjartli  V.  Cotton,  1753,  1  Dick.  183,  108. 


CHAP.  I.]  SKELTON  v.  SKELTON  657 

I  took  a  distinction  where  the  tenant  hath  only  impunitatem,  and 
where  he  hath  jus  in  arhorihus.  If  the  tenant  have  only  a  bare  in- 
demnity, or  exemption  from  an  action  if  he  commited  waste,  there 
it  is  fit  he  should  be  restrained  by  injunction  from  committing  it;  but 
if  he  have  a  right  in  the  thing  itself,  when  it  was  wasted  and  cut  down, 
there  it  is  no  way  reasonable  that  he  should  be  restrained:  as,  for 
example,  if  there  be  tenant  for  life,  the  remainder  for  life,  the  rever- 
sion in  fee;  here  the  tenant  for  life  has  no  right  nor  power  to  fell 
timber  or  commit  waste;  yet  if  he  do  so  he  cannot  be  punished 
for  it  in  an  action  of  waste,  during  the  life  of  him  in  the  remainder 
for  life ;  for  that  intervening  remainder  is  an  impediment  to  the 
action;  so  it  is  most  just  to  grant  an  injunction  to  stay  waste;  and 
so  it  was  ruled  in  the  Chancery  by  advice  of  judges,  P.  41  El.  Sir  F, 
Moor,  554,  pi.  748;'  and  Egerton,  C,  said  he  had  seen  a  precedent 
of  such  an  injunction,  5  R.  2,  and  so  it  had  been  done  before,  temp. 
E.  6,  Vandemot  v.  Eyr  and  with  this  agrees  16  Jac.  B.  R.,  1  Roll. 
377,  pi.  13,  per  curiam.  And  the  reason  of  this  is  most  convincing; 
for  when  such  a  tenant  for  life  hath  cut  down  the  trees,  he  in  the  re- 
mainder in  fee  may  take  them  away,  notwithstanding  the  mean  re- 
mainder for  life,  or  he  may  have  a  trover  and  conversion  against  the 
tenant  for  life,  if  he  remove  them;  which  shows  that  such  tenant  for 
life  hath  no  property  in  the  trees;  it  were,  ergo,  most  absurd  to  put 
the  reversioner  to  recover  damages  for  his  inheritance  in  the  trees,  or 
to  seize  them  as  chattels,  when  they  may  better  be  preserved  to  him 
in  specie,  by  granting  an  injunction  to  stay  the  felling  of  them.  And 
upon  the  like  reason  it  may  seem  that  tenant  after  possibility  may  be 
restrained  by  injunction  from  committing  waste,  for  so  if  he  fell  trees 
the  reversioner  may  have  a  trover  and  conversion,  as  was  held  24  Car. 
1;  B.  R.  Udar  i;.  Udal's  case,  p.  Rolle  et  curiam  and  yet  temp.  E. 
B.  placita  parliament.  Ryley,  Appendix,  653.  Kirbrok  petitions 
"quod  hreve  de  waste  poet  giser  versus  Roger  son  frere"  (against  Maud, 
the  widow  of  Roger)  "tenant  in  tail,  apres  possihilite;  Response,  ley 
nest  mye  uncore  ordein  en  ce  cas."  Probably  this  was  before  21  Ed.  3, 
for  in  21  Ed.  3,  Rot.  Pari.  n.  46,  the  commons  petition  for  a  general 

*  "Per  Egerton,  Keeper  of  the  Great  Seal,  that  he  had  seen  a  precedent  in 
the  time  of  Richard  II.,  that  where  there  is  a  tenant  for  life,  remainder  for 
life,  remainder  over  in  fee,  and  therefore  waste  in  the  first  tenant  for  life 
is  dispunishable  by  the  common  law;  yet  it  had  been  deemed  in  chancery 
by  the  advice  of  the  judges,  upon  complaint  of  him  in  remainder  in  fee, 
that  the  first  tenant  shall  not  commit  waste,  and  an  injunction  gi-anted." 

In  Cotton  V.  Garth,  1753,  1  Dick,  183,  208,  Lord  Hardwicke  said:  "There- 
fore the  case  already  put,  of  an  intermediate  remainder  for  life,  though  the 
law  allows  no  action  of  waste,  this  Court  sustains  a  bill  for  an  injunction, 
and  this  abantiquo,  according  to  the  case  in  Moore,  554,  where  Lord  Eixsmere 
says,  he  has  seen  a  precedent  for  it,  so  long  ago  as  in  the  reign  of  Richard 
II.     1st  Roll's  Abridg.  377,  1  Vern.  23,  and  many  cases  in  practice." 


658  SKELTON  v.  SKELTON  [part  ii. 

law,  that  tenant  after  possibility  might  be  liable  to  an  action  of  waste, 
as  being  in  effect  but  tenant  for  life,  yet  could  not  obtain  it ;  but 
this  serves  only  to  keep  the  tenant  after  possibility  in  a  state  of  im- 
punity, if  he  commit  waste,  not  to  give  him  a  right  to  commit  it.  On 
the  other  side,  if  there  be  tenant  for  life,  with  an  express  charge  to 
hold  without  impeachment  of  waste,  he  is  not  to  be  restrained  by  in- 
junction, for  he  hath  more  than  a  bare  impunity,  viz.,  a  right  in  the 
trees  to  fell  them;  a  fortiori,  in  the  case  in  question,  no  restraint  can 
be  put  upon  a  jointress  in  tail  who  hath  the  inheritance;  and  yet  all 
this  notwithstanding,  he  that  hath  a  lawful  power  and  liberty  to  com- 
mit waste  may  be  restrained  by  Chancery  from  using  this  power, 
when  the  waste  which  he  is  about  to  do  is  signally  contra  honum  pub- 
licum (V.  19  Car.  1,  B.  R.  1  Roll.  380,  T.  3),  though  a  lease  for 
years  was  made  without  impeachment  of  waste  by  the  Bishop  of  Win- 
chester, yet  when  the  lessee  for  years,  towards  the  end  of  his  term,  was 
about  to  cut  up  all  the  trees,  an  injunction  was  awarded  by  the  advice 
of  all  the  Judges,  pro  hono  publico,  and  in  favor  of  the  church,  whereof 
the  King  is  patron,  notwithstanding  the  agreement  of  the  parties. 
But  in  my  Lord  of  Orford's  case,  where  the  Earl  was  tenant  for  life 
without  impeachinent  of  waste,  the  reversion  in  fee  to  the  co-heirs  of  the 
Lady  Banning,  and  the  Earl  was  about  to  pull  down  a  house  near 
Colchester,  no  injunction  could  be  obtained,  but  the  co-heirs  and  Sergeant 
Peck,  who  was  a  purchaser  from  one  of  them,  were  fain  to  compound 
with  the  Earl.  So  it  seems  there  is  some  discretionary  latitude  in  these 
cases ;  but  that  which  is  more  remarkable  is,  that  he  who  hath  a  power 
to  commit  waste  may  sometimes  be  restrained  from  the  exercise  of  that 
power,  when  it  tends  only  to  a  private  damage ;  as  for  example,  the 
Lady  Evelyn  was  tenant  for  life  in  jointure,  remainder  to  Sir  John 
Evelyn,  her  eldest  son,  for  life,  without  impeachment  of  waste,  with 
several  remainders  over;  the  jointress  let  the  land  to  a  tenant  at  will;  Sir 
John  Evelyn  enters  by  consent  of  the  undertenant,  and  cuts  down  trees; 
resolved,  though  no  injunction  had  lain  against  Sir  John  Evelyn  if  his  re- 
mainder had  fallen  into  possession,  yet  now  it  does;  for  although  the 
license  of  tenant  at  will  to  enter  excuse  the  entry  from  being  a  trespass, 
yet  no  possession  by  such  entry  can  enable  him  to  cut  down  the  trees  pres- 
ently, for  the  jointress  hath  right  during  her  life  to  the  shade  and  the 
mast;  and  to  reasonable  bootes;  ideoque  Lord  Bridgman,  Custos, 
awarded  an  injunction  during  the  life  of  the  jointress.  1  Dec.  1670, 
22  Car.  2.  Lord  Nottincitam's  MSS.  :  "  This  court  sees  no  color  of 
cause  to  give  the  said  plaintiff  any  relief  in  this  court,  and  doth  there- 
fore think  fit  and  order  that  the  matter  of  the  said  plaintiff's  bill  be 
from  henceforth  clearly  and  absolutely  dismissed  out  of  this  court; 
and  it  is  hereby  referred  to  Sir  J.  F.,  etc.,  to  tax  the  said  defendants 
their  moderate  costs  of  this  suit."    Reg.  Lib.  B.,  1G77,  fol.  33. 


CHAP.  I.]  ABRAHALL  i;.  BUDD  659 

ABRAHALL  v.  BUDD. 

In  Chancery,  before  Lord  Chancellor  Nottingham,  1680. 

[2  General  Ahridgment  of  Cases  in  Equity,  757.'] 

A.  upon  his  marriage  settled  lands  to  the  use  of  himself  and  M.  his 
wife  and  the  heirs  of  their  two  bodies.  Afterwards  A.  died  sa^is  issue. 
M.  married  D.  (the  defendant)  being  then  tenant  in  tail  after  possibility 
of  issue  extinct,  and  M.  and  D.  having  felled  some  trees  in  a  grove 
that  grew  near,  and  was  an  ornament  to  the  mansion  house,  and  having 
an  intention  to  sell  the  rest,  the  plaintiff,  to  whom  the  land  did  belong  in 
remainder,  brought  his  bill  to  restrain  M.  from  selling  those  trees,  and  to 
have  an  injunction  to  stay  the  committing  of  waste.  The  cause  was  re- 
ferred, and  if  the  parties  could  not  agree  then  to  be  set  down  again.  But 
Lord  Chancellor  Nottingham  discovered  this  inclination  fortiter  for 
granting  an  injunction.^ 

^This  case  is  also  reported  in  2  Shower;  2  Freeman's  C.  C.  53  (incorrectly)  ; 
2  Swanston,   172    (correctly  from  Lord  Nottingham's  MSS.). 

^  "But  this  Court  hath  gone  still  further  in  the  case  of  Abrahall  v.  Budd, 
2  Freeman  53,  and  Lord  Nottingham  cites  the  case  of  a  Lady  Evelyn,  where 
there  was  a  tenant  for  life,  remainder  to  the  first  son  for  life,  without  im- 
peachment of  waste,  with  remainders  over,  and  the  first  son  by  leave  of  the 
lessee  of  the  tenant  for  life,  came  upon  the  land  and  felled  timber,  which  was 
not  under  the  description  of  trees  growing  for  shelter,  or  ornament;  and  this 
Court  granted  an  injunction  against  this,  though  no  action  whatsoever  could  be 
maintained  at  law. 

"And  upon  the  same  ground,  I  did  the  like  in  the  case  of  Flemming  against 
the  late  Bishop  of  Carlisle,  and  others:  there  the  Bishop  was  tenant  for  life, 
remainder  to  his  eldest  son  for  life,  without  impeachment  of  waste,  with 
remainder  over  in  fee;  the  eldest  son  by  permission  of  the  Bishop  entered,  and 
began  to  cut  down  the  timber,  and  the  reversioner  in  fee,  brought  a  bill  for 
an  injunction,  and  I  granted  it,  because  he  was  not  to  be  allowed  to  exercise 
his  power  of  doing  waste  by  anticipation;  and  before  the  estate  to  which 
this  privilege  was  annexed,  came  into  possession;  and  this  in  reason  comes 
near  to  the  case  of  the  late  Sir  John  Hind  Cotton's  bringing  himself  by 
collusion,  into  possession  of  the  timber,  before  his  time. 

"The  ease  of  Robinson  against  Lytton,  3  Atk.  209,  2  Eq.  Cas.  Abr.  528,  went 
still  further  than  the  common  law.  That  cause  was  heard  in  this  Court,  the 
12th  of  Dec.  1744.  There  was  a  devise  to  the  defendant  and  his  heirs,  and  if 
he  should  die  before  his  age  of  21  years,  leaving  no  issue,  then  to  the  testator's 
first,  etc.,  daughters  in  tail;  remainder  to  the  testator's  own  right  heirs;  but  if 
the  defendant  should  live  to  attain  the  age  of  twenty-one  years,  then  the  estate 
should  be  sold,  and  the  money  applied  for  the  benefit  of  the  testator's  daugh- 
ters. The  defendant,  being  under  the  age  of  twenty-one  years,  began  to  commit 
waste,  and  the  daughters  brought  their  bill  in  this  case;  and  though  the  de- 
fendant had  the  inheritance  in  him  in  point  of  law  at  the  time,  yet  by  reason 


GGO  FAKEANT  v.  LOVEL        '  [part  ii. 

ANONYMOUS. 
In  Chancery^  before  Sir  John  Trevor,  M.  E.,  1704. 

[2   Freeman  278.] 

A  woman  tenant  in  tail,  after  possibility  of  issue  extinct,  was  restrained 
from  committing  waste  in  pulling  down  houses,  or  in  cutting  down  trees, 
which  stood  in  defence  of  the  house,  and  fruit  trees  in  the  garden;  but 
for  some  turrets  of  trees,  which  stood  a  land's  length  or  two  from  the 
court,  would  grant  no  injunction,  because  she  had  by  law  power  to  com- 
mit waste;  and  yet  notwithstanding,  she  was  restrained  in  the  particulars 
aforesaid,  because  that  seems  to  be  malicious.^ 


FAEEANT  v.  LOVEL. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1750. 

[13  AtTcyns  723.] 

A  bill  was  brought  by  a  ground  landlord  to  stay  waste  in  an  under- 
lessee,  who  held  by  lease  from  the  original  lessee. 

Lord  Chancellor.  A  certificate  being  produced  of  the  waste,  I  am  of 
opinion  the  plaintiff  has  the  same  equity  as  in  other  cases  of  injunctions. 

As  where  there  is  tenant  for  life,  remainder  for  life,  remainder  in  fee, 
yet  the  court,  on  a  bill  broiight  by  remainderman  in  fee,  to  stay  waste 
in  the  first  tenant  for  life,  will,  notwithstanding  the  intermediate  estate 
for  life,  upon  a  certificate  of  the  waste  grant  an  injunction. 

So,  where  a  mortgagee  in  fee  in  possession  commits  waste  by  cutting 
down  timber,  and  the  money  arising  by  the  sale  of  the  timber  is  not 
applied  in  sinking  the  interest  and  principal  of  his  mortgage,  the  court, 
on  a  bill  brought  by  the  mortgagor  to  stay  waste,  and  a  certificate  thereof, 
will  grant  an  injunction.^ 

of  tlio  fDntingont  executory  limitation,  the  Court  granted  an  injunction,  and 
at  the  hearing  of  the  cause  after  it's  being  fully  argued,  made  that  injunction 
perpetual."  P<"r  Lord  TIardwicke,  in  Garth  v.  Cotton,  1753,  1  Dick.  183,  209- 
210. 

'  In  (Jarth  v.  Cotton,  1753,  1  Dick.  183,  209,  Lord  Hardwicke  said:  "There 
is  the  like  case  before  Sir  John  Trevor,  M.R.,  and  this  has  been  followed  since 
by  several  cases  of  tenant  for  life  without  impeachment  of  waste  generally, 
who  liave  attempted  to  pull  down  a  mansion  hcmse  or  to  cut  down  timber 
growing  for  shelter,  or  ornament  of  the  mansion  house." 

^^  Yoiile  V.  Richards,  1832,  1  N.  J.  Eq.  534;  S.  C.  23  Am.  Dec.  722;  Givens  v. 
McCalmont,   1835,  4  Watts    (I'a.)    4(50. 


cuAP.  I.]  KANE  V.  VANDERBURGH  and  others  661 

So,  likewise,  where  there  is  only  a  mortgage  for  a  term  of  years,  and  the 
mortgagor  commits  waste,  the  court,  on  a  bill  by  the  mortgagee  to  stay 
waste,  will  grant  an  injunction,  for  they  will  not  suffer  a  mortgagor  to 
prejudice  the  incumbrance. 

For  these  reasons  his  Lordship  granted  an  injunction  to  stay  waste. 


BRADY  V.  WALDRON  AND  WALDRON. 

In  the  Court  of  Chancery  of  New  York^  before  Chancellor  Kent, 

1816. 

[2  Johnson's  Chancery  148.] 

The  bill  was  filed  by  the  plaintiff,  a  mortgagee,  for  an  injunction  to 
stay  waste  in  cutting  timber  on  the  mortgaged  premises,  whereby  the 
land  would  become  an  insufficient  security  for  the  debt.  There  was  no 
suit  pending  for  a  foreclosure. 

The  Chancellor.^  An  injunction  lies  against  a  mortgagor  in  possession 
to  stay  waste.  The  Court  will  not  suffer  him  to  prejudice  the  security. 
Dick.  Rep.  75;  3  Atk.  210,  237;  3  Vesey,  105. 

Injunction  granted. 


KANE  V.  VANDERBURGH  and  others. 

In  the  Court  of  Chancery  of  New  York^  before  Chancellor  Kent, 

1814. 

[1  Johnson  s  Chancery  11.] 

The  bill,  which  was  for  an  injunction  to  stay  waste,  stated,  that  Abra- 
ham Tenbroeck,  being  seised  in  fee  of  the  premises,  devised  them  in  fee 
to  his  daughter,  Margaret,  who  devised  them  to  her  sister,  Elizabeth 
Schuyler,  for  life,  remainder  to  her  children  living  at  her  death,  and 
in  default  of  such  children,  remainder  to  the  children  of  her  brother, 
Dirck  Tenbroeck,  in  fee.  After  the  death  of  the  two  testators,  Elizabeth 
Schuyler,  and  her  husband,  released  her  interest  to  the  plaintiff.  Eliza- 
beth is  still  living,  but  without  issue ;  and  the  defendants  are  tenants 

'  See  Bishop  of  London  v.  Web,  1718,  1  P.  Wms.  527;  Anonymous,  1729, 
Mosely,  237;  Peirs  v.  Peirs,  1750,  1  Ves.  Sr.  522. 

An  injunction  to  stay  waste  will  be  granted,  though  there  is  no  suit  pending, 
and  though  no  action  can  be  maintained  against  the  tenant  at  law. 


662  KANE  v.  VANDERBURGH  and  others  [part  ii. 

from  year  to  year.  The  bill  further  stated,  that  actions  of  ejectment 
were  intended  to  be  brought  against  the  defendants,  who  had  been  served 
with  notices  to  quit,  which  would  expire  on  the  1st  May  next;  and  it 
charged  also,  "  that  the  defendants,  by  themselves,  and  others  hired  by 
them,  are  daily  committing  great  waste  on  the  premises  by  cutting  down 
large  quantities  of  valuable  wood  and  timber,  for  sale,  and  carrying  the 
same  to  market,  to  the  great  and  irreparable  injury  of  the  land,  and  of 
the  estate  of  the  plaintiff." 

No  answer  has  yet  been  put  in  the  bill. 

The  Chancellor.  The  waste  is  explicitly  and  sufficiently  charged 
in  the  bill  to  support  the  injunction.  Nor  is  it  essential  to  this  remedy 
that  there  should  be  an  actual  lis  pendens  in  a  court  of  law.  There  are 
numerous  cases  in  chancery,  as  Lord  Hardwicke  has  frequently  ob- 
served, Perrot  v.  Perrot,  3  Atk.  94;  Robinson  v.  Litton,  3  Atk.  210; 
Earrant  v.  Lovell,  3  Atk.  723;  Garth  v.  Cotton,  1  Ves,  556,  in  which 
the  court  has  interposed  to  stay  waste,  by  the  tenant,  where  no  action  can 
be  maintained  against  him  at  law.  Thus,  where  there  is  lessee  for 
life,  remainder  for  life,  remainder  in  fee;  the  mesne  remainderman 
cannot  bring  waste,  nor  the  remaindermen  in  fee,  but  chancery  will  in- 
terpose and  stay  the  waste. 

So  equity  will,  in  many  cases,  restrain  waste,  though  the  lease  con- 
tain the  clause  without  impeachment  of  waste,  and  which  takes  away 
the  remedy  at  law,  as  where  this  power  is  exercised  in  an  unreasonable 
manner,  and  against  conscience.  Aston  v.  Aston,  1  Ves.  264;  Strath- 
more  V.  Bowes,  2  Bro.  88. 

Chancery  goes  greater  lengths  than  the  courts  of  law  in  staying  waste. 
It  is  a  wholesome  jurisdiction,  to  be  liberally  exercised  in  the  prevention 
of  irreparable  injury,  and  depends  on  much  latitude  of  discretion  in  the 
court. 

The  tenant  for  life  is  here  suffering  injury  to  his  own  interest,  and  he, 
by  his  tenants,  is  doing  great  injury  to  the  inheritance,  which  it  is  his 
duty  to  prevent.  He  is  bound  to  stop  the  mischief,  or  be  responsible  him- 
self. To  suppose  that  an  ejectment  must  be  actually  commenced  be- 
fore the  injunction  can  issue,  is  certainly  an  error ;  this  would  be  placing 
the  operation  of  waste  beyond  the  reach  of  control  during  the  period 
of  the  six  months'  notice.  Indeed,  the  notice  to  quit  may  be  con- 
sidered as  the  commencement  of  an  adverse  proceeding  at  law,  and 
sufficient  to  bring  the  case  within  the  spirit  of  the  decision  in  Lathrop 
V.  Marsh,  5  Ves.  259. 

Motion  denied,  with  costs. 


CHAP.  I.]  HAWLEY  V.  CLOWES  663 

HAWLEY  V.  CLOWES. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor  Kent. 
[2  Johnson's  Chancery  122.] 

The  bill  prayed  for  a  partition  of  land,  and  for  an  injunction  to  stay 
waste  in  cutting  down  and  carrying  away  the  timber.  It  stated,  that  the 
plaintiff  and  defendant  owned  the  land  as  tenants  in  common,  in  equal 
undivided  moieties,  and  that  the  defendant  is  in  the  actual  possession  of 
the  whole  by  himself,  or  his  tenant,  and  is  cutting  down  the  timber,  and 
threatening  to  persevere;  but  admitted  the  plaintiff's  title  as  tenant  in 
common. 

An  injunction  was  granted  on  filing  the  bill,  which  was  sworn  to. 

The  defendant,  in  proper  person,  moved  to  dissolve  the  injunction,  on 
the  ground  that  an  injunction  to  stay  waste  between  tenants  in  common 
will  not  lie,  and  cited  Goodwyn  v.  Spray,  Dickens,  667,  in  1786,  and 
Smallman  v.  Onions,  3  Bro.  621.  But  if  the  motion  could  not  be  granted 
in  toto,  he  then  moved  that  he  might  have  liberty  to  carry  off  the  wood 
already  cut  before  the  service  of  the  process. 

No  answer  was  put  in. 

The  Chancellor.  The  injunction  must  be  modified,  so  as  to  confine 
it  to  timber  then  standing  and  growing  on  the  premises,  and  not  wanted 
for  the  necessary  use  of  the  farm.  The  last-cited  case  admitted  the 
authority  of  the  Court  to  grant  the  writ  between  tenants  in  common, 
in  special  cases,  as  where  the  defendant  was  sworn  to  be  insolvent;  and 
Lord  Eldon,  in  the  subsequent  cases  of  Hole  v.  Thomas,  7  Vesey,  589, 
and  of  Tworl  v.  Tworl,  16  Vesey,  128,  admitted  the  propriety  and  neces- 
sity of  this  power  in  the  Court,  between  tenants  in  common,  where  the 
waste  was  destructive  to  the  estate,  and  not  within  the  usual  and  legiti- 
mate exercise  of  enjoyment.  The  case,  therefore,  of  the  exercise  of  this 
power,  must  rest  in  sound  discretion;  it  is  not  a  case  of  a  want  of  juris- 
diction. Here  is  a  bill  for  partition,  and  pending  the  suit  it  appears 
to  be  extremely  fit  that  the  tenant  in  common  in  possession  should  not 
be  permitted  to  strip  the  land  of  its  timber.  It  is  destructive,  in  many 
cases,  of  the  value  of  the  estate,  and  not  consistent  with  a  prudent  en- 
joyment by  the  real  owner.  The  statute  of  W.  2.  13  Edw.  I.  c.  22,  sess. 
10  ch.  6,  gives  an  action  of  waste  by  one  tenant  in  common  against 
another.  It  is,  therefore,  an  injviry  recognized  by  law,  and  the  remedy 
by  injunction  is  applicable  to  every  species  of  waste,  it  being 
to  prevent  a  known  and  certain  injury;  this  remedy  is  peculiarly  proper 
and  appropriate  pending  a  bill  for  partition  of  the  very  land.  It  comes 
within  the  equity  of  the  statute  of  sess.  10  ch.  50.  s.  29,  which  prohibits 
a  defendant,  pending  a  suit  for  the  land,  from  making  waste,  and  directs 


664  DOHERTY  v.  ALLMAN  [part  ii.' 

the  Court,  where  the  suit  is  pending,  to  prevent  it.  The  injunction, 
therefore,  under  the  above  modification,  must  be  continued  until  answer, 
and  further  order/ 

Injunction  continued. 


MOLLINEUX  V.  POWELL. 

In  Chancery,  before  Lord  Chancellor  King,  1730. 

[3  Peere  Williams  268,  note  F.'\ 

A.,  tenant  for  years,  remainder  to  B.  for  life,  remainder  to  C.  in  fee; 
A.  is  doing  waste;  B.,  though  he  cannot  bring  waste,  as  not  having  the 
inheritance,  yet  he  is  entitled  to  an  injunction.  See  Roll.  Abr.  Koswell's 
case,  377.  But  if  the  waste  be  of  a  trivial  nature,  and  a  fortiori,  if  it  be 
meliorating  waste,  as  by  building  on  the  premises  (see  1  Inst.  53)  the 
court  will  not  enjoin ;  nor  if  the  reversioner  or  remainderman  in  fee  be 
not  made  a  party,  who  possibly  may  approve  of  the  waste. 


In  Doherty  v.  Allman  (1878)  L.  R.  3  App.  Cas.  709,  724.  It  appeared 
that  two  leases  were  granted  on  pieces  of  land  with  some  buildings  on 
them  in  1798  for  999  years,  the  other  in  1824  for  988  years.  The  premises 
had  been  used  as  corn  stores  for  some  years;  afterwards  for  artillery 
barracks.  As  they  were  unoccupied  and  dilapidated,  the  lessee  bethought 
him  of  turning  the  stores  into  dwelling  houses  whereby  he  would  put 
money  in  his  purse  as  well  as  benefit  realty.  The  lessor  however  sought 
to  enjoin  him  and  filed  his  bill  alleging  waste.  The  injunction  was  re- 
fused. Lord  O'Hagan  saying: 

Now  we  have,  I  think,  established  for  the  purposes  of  this  decision 
the  principles  in  this  case  by  which  we  ought  to  abide.  In  the  case  of 
Mollineux  v.  Powell,  3  P.  Wms.  268,  n.  (F),  which  contains  the  clearest 
dictum  we  have  upon  the  matter,  two  conditions  as  to  the  exercise  of 
jurisdiction  in  cases  of  waste  have  been  very  clearly  pointed  out,  and  one 
at  least  of  those  conditions  is  expressly  recognized  afterwards  in  the  Irish 
case  of  Coppinger  v.  Gubbins,  3  J.  &  Lat.  411.  Those  conditions  are 
that  the  waste  with  which  a  Court  of  Equity,  or  your  Lordships  acting  as 
a  Court  of  Equity,  ought  to  interfere,  should  be  not  ameliorating  waste, 
nor  trivial  waste.    It  must  be  waste  of  an  injurious  character — it  must  be 

'  In  .iddition  to  tho  parties  enumorated  in  the  text  who  may  enjoin  the 
commis.sion  of  waste,  t)ie  following  may  enjoin  or  be  enjoined: 

An  e\-ff'iitf)ry  devisee,  Kohinson  v.  Litton,  1744,  .3  Atk.  200;  a  contingent 
remainderman  in  general,  University  v.  Tucker,  1888,  31  W.  Va.  621;  a  de- 
visee in  fee  with  an  executory  devise,  Turner  v.  Wright,  18G0,  2  De  G.  F.  &  J. 
234. 


CHAP.  I.]  MEUX  V.  COBLEY  665 

waste  of  not  only  an  injurious  character,  but  of  a  substantially  injurious 
character,  and  if  either  the  waste  be  really  ameliorating  waste — that  is,  a 
proceeding  which  results  in  benefit  and  not  in  injury — the  Court  of 
Equity,  and  your  Lordships  acting  as  a  Court  of  Equity,  ought  not  to 
interfere  to  prevent  it.  I  think  that  is  perfectly  well  established.  On  the 
other  hand,  if  the  waste  be  so  small  as  to  be  indifferent  to  the  one  party 
or  the  other — if  it  be,  as  has  been  said  by  a  great  authority  in  our  law, 
such  a  thing  as  twelvepence  worth  of  waste,  a  Court  of  Equity,  and  your 
Lordships  acting  as  a  Court  of  Equity,  ought  not  to  interfere  on  account 
of  the  triviality  of  the  matter.  Now,  in  my  view  of  the  case,  those  prin- 
ciples decide  the  question  so  far  as  this  portion  of  it  is  concerned ;  for  it 
appears  to  me  that  we  have  here  established  to  the  full  satisfaction  of 
your  Lordships,  by  a  series  of  authorities  to  which  I  shall  not  refer,  that 
the  waste,  to  be  of  any  sort  of  effect  with  a  view  to  an  injunction,  must  be 
a  waste  resulting  in  substantial  damage.  Your  Lordships  are  the  judges 
not  only  of  the  propriety  of  exercising  your  discretion,  but  of  the  facts 
by  which  the  exercise  of  that  discretion  ought  to  be  regulated.  Now,  with 
reference  in  the  first  place  to  the  materiality  of  the  waste,  we  have  in  the 
analogy  of  proceedings  in  the  courts  of  law  a  very  important  guide  for 
the  exercise  of  our  equitable  jurisdiction.  It  is  established  not  only  in 
The  Governors  of  the  Harrow  School  v.  Alderton,  2  B.  &  P.  86,  before 
Lord  Eldon,  but  in  every  case,  that  if  there  be  a  trial  at  law,  and  if  the 
result  of  such  trial  is  that  the  jury  is  compelled  to  give  nominal  damages, 
such  as  three  farthings  in  that  case,  the  verdict  will  be  entered,  not  for 
the  man  who  obtained  the  nominal  damages,  but  for  the  defendant  in  the 
case.  It  is  rather  an  extraordinary  jurisdiction,  no  doubt — it  is  an 
equitable  jurisdiction  exercised  by  a  court  of  law — but  it  seems  to  be 
quite  established  and  quite  recognized,  and  being  so  I  think  it  is  impos- 
sible to  say  that  when  we  come  to  exercise  our  jurisdiction,  which  is  a 
discretionary  jurisdiction,  we  should  act  upon  any  other  principle,  or  to 
say  that  if  we  see  that  the  damage  has  not  really  been  substantial  and 
important,  we  should  do  that  in  a  Court  of  Equity  according  to  our  dis- 
cretion, which  even  in  the  strictness  of  a  court  of  common  law  is  not  done 
because  of  the  reason  given." 


MEUX  V.  COBLEY. 

In  the  Supreme  Court  of  Judicature,  Chancery  Division,  1891. 

[Law  Reports  (1892)  2  Chancery  Division  253.] 

Under  an  agricultural  lease,  in  1889,  of  a  farm  near  London,  consisting 
of  arable  and  pasture  land,  the  lessee  covenanted  to  yield  up  the  premises 
at  the  end  of  the  term,  together  with  all  fixtures  and  "  improvements  " 
which  might  during  the  term  be  fixed  to  or  erected  on  the  demised 


CGG  MEUX  V.  COBLEY  [part  ii. 

premises,  except  such  fixtures  as  should  be  erected  by  the  lessee,  and 
which  he  should  be  at  liberty  to  remove  in  case  the  lessor  should  object  to 
purchase  the  same  by  valuation ;  and  also  that  he  would  "  in  all  respects 
cultivate  and  manage  the  farm,  and  every  part  thereof,  in  a  good,  proper, 
and  husbandlike  manner,  according  to  the  best  rules  of  husbandry  prac- 
tised in  the  neighbourhood."  The  lessee  converted  part  of  the  demised 
premises  into  a  market  garden,  erecting  glass-houses  thereon  for  the  culti- 
vation of  hothouse  produce  for  the  London  market.  The  lessor  brought 
an  action  for  an  injunction  to  restrain  the  lessee  from  converting  the 
farm  into  a  market  garden,  alleging  that  his  doing  so  was  a  breach  of 
covenant  and  was  waste,  causing  injury  to  the  inheritance.  At  the  trial 
it  was  proved  that  other  farms  in  the  neighbourhood  had  been  con- 
verted into  market  gardens,  that  being  found  to  be  the  most  profitable 
mode  of  cultivation."  ^ 

Kekewich,  J.^  Now,  is  what  the  Defendant  is  doing  waste  ?  Perhaps, 
technically,  it  is.  But  supposing  it  to  be  technically  waste,  it  does  not 
follow  that  the  Plaintiff  would  recover  damages;  and  if  it  followed  that 
he  would  recover  damages,  it  by  no  means  follows  that  he  would  get  an 
injunction. 

The  case  of  Jones  v.  Chappell,  Law  Eep.  20  Eq.  539,  was  referred  to 
usefully,  because  there  Sir  George  Jessel  sums  up  the  law  shortly  in 
this  way.  Ibid.  641 :  "  The  erection  of  buildings  upon  land  which  im- 
prove the  value  of  land  is  not  waste.  In  order  to  prove  waste  you  must 
prove  an  injury  to  the  inheritance."  That  is  borne  out  by  many  cases, 
including  Governors  of  Harrow  School  v.  Alderton,  2  Bos.  &  P.  86, 
where,  on  the  Plaintiff  obtaining  a  farthing  damages,  the  Defendant  got 
leave  to  enter  judgment  for  himself.  But  I  think  it  unnecessary  to  refer 
to  any  other  case  on  this  point  except  Doherty  v.  Allman,  3  App.  Cas.  709, 
That  case  seems  to  me  to  be  entirely  consistent  with  Jones  v.  Chappell, 
and  to  lay  down  the  law  in  a  manner  applicable  to  this  case.  Besides  the 
passage  which  was  read  from  Lord  Cairns'  speech.  Ibid.  Y22,  there  is  an- 
other passage  immediately  following,  which  I  think  was  not  read,  but 
which  seems  to  me  also  in  point.  His  Lordship  said.  Ibid.  723 :  "  I  doubt, 
further,  whether  it  must  not  be  taken  as  clear  from  the  evidence  here  that 
any  jury,  or  any  tribunal  judging  upon  the  question  of  fact,  would  not  say 
that,  if  there  be  technically  what  in  the  eye  of  the  Common  Law  is  called 
waste,  still  it  is  that  ameliorating  waste  which  has  been  spoken  of  in  sev- 
eral of  the  cases  cited  at  the  Bar.  That  which  is  done  if  it  be 
technically  waste — and  here  again  I  will  assume  in  favour  of  the  ap- 
pellant that  it  is  technically  according  to  the  Common  Law,  waste — yet 
it  seems  to  me  to  be  that  ameliorating  waste  which  so  far  from  doing 
injury  to  the  inheritance,  improves  the  inheritance."  Lord  Blackburn 
went  into  the  same  point,  and  says,  App.  Cas.  733:  "  But  even  supposing 
there  was  an  injury,  and  that  there  was  something  for  which  there  might 

'  The  statement  of  the  case  is  taken  from  the  headnote. 
'  Only  part  of  the  opinion  ia  printed  relating  to  waste. 


CHAP.  I.]  DOUGLASS   V.  WIGGINS  667 

be  damages  recovered,  is  it  obligatory  upon  a  Court  of  Chancery  to  grant 
an  injunction  to  prevent  it  under  all  circumstances?  I  think  not."  So 
again  Sir  George  Jessel,  in  the  case  of  Jones  v.  Chappell,  Law  Rep.  20 
Eq.  539,  to  which  I  have  already  referred,  says,  Law  Rep.  20  Eq.  542, 
that  the  landlord  would  be  entitled  to  an  injunction  against  the  tenant 
"  if  the  injury  were  sufficiently  serious." 

So  that  all  that  is  asked  here  being  an  injunction — and  rightly  so,  be- 
cause, unless  the  injunction  is  granted  the  Plaintiff  will  get  nothing 
worth  having — the  question  I  have  to  consider  is,  is  there  any  damage, 
a.x\\  injury  to  the  inheritance?  It  has  been  jiroved  to  me  conclusively, 
that  what  the  Defendant  is  doing,  so  far  from  being  an  injury  to  the 
inheritance,  is  of  the  greatest  possible  advantage ;  and  that  the  addition 
of  these  houses,  if  they  are  substantially  built,  and  if  they  are  kept  in 
good  order,  is  a  most  advantageous  addition  to  a  farm  of  this  kind  in  the 
neighbourhood  of  London.' 


DOUGLASS  AND  OTHERS  V.  WIGGIlSrS  and  another. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor  Kent, 

1815. 

[1  Johnson's   Chancery  435.] 

This  was  a  bill  for  an  injunction,  to  stay  waste.  It  stated,  that  the 
defendants  had  taken  a  lease  of  a  dwelling  house  in  Pearl  street,  in  the 
city  of  New  York,  for  four  years,  from  the  first  of  May,  1815 ;  that  the 
lease  provided,  that  the  defendants  were  to  lay  out  300  dollars  in  im- 
provements, to  be  approved  of  by  the  lessors ;  that,  against  the  consent  of 
the  lessors,  the  defendants  were  converting  the  whole  dwelling  house 
into  a  store,  and  were  prostrating  partitions,  and  cutting  through  the 
ceilings  and  floors  in  the  second  and  third  stories,  and  fLxing  a  wheel 
and  tackle  in  the  third  story  to  raise  heavy  packages,  which  would  be  to 
the  great  and  constant  injury  of  the  building,  as  the  timbers  in  the 
third  story  were  weak. 

Anthon,  for  the  plaintiffs,  cited  Bonnett  v.  Sadler,  14  Ves.  526.  Amb. 
209.     Anon,  and  Bacon,  tit.  Waste,  c.  5. 

The  Chancellor.     Let  the  injunction  issue. 

Motion  granted. 

*  Inasmuch  as  waste  is  an  injury  to  the  inheritance,  it  follows  that  a  positive 
improvement  to  the  freehold  should  not  be  waste,  at  least  not  in  a  court  of  equity. 
See  Winship  v.  Pitts,  1832,  3  Paige  259;  Shine  v.  Wilcox,  1837,  1  Der.  & 
Bat.  Eq.  631;  Sherrile  -i;.  Connor,  1890,  107  N.  C.  630;  Keeler  v.  Eastman, 
1839,  11  Vt.  293;  Pynchon  v.  Stearne,  1846,  11  Met.  304,  per  Wilde,  J. 
Smith  V.  Carter,  1853,  18  Beav.  78,  contra,  is  generally  discredited. 


668  KLIE  V.  VON  BKOOCK  [part  ii. 


KLIE  V.  VON  BEOOCK. 

In  the  Court  of  Chancery  of  New  Jersey,  1897. 
[56  New  Jersey  Equity  18.] 

The  defendants  obtained  permission  from  the  Hoboken  Land  and  Im- 
provement Company  to  cut  the  doorway  through  the  partition  wall,  but, 
clearly,  that  company  could  not  give  them  the  right  to  do  so  without  the 
permission  of  the  complainants,  who  owned  one-half  of  the  wall.  And 
the  result  is  the  same  whether  we  consider  that  ownership  as  of  the 
particular  one-half  which  was  on  their  side  of  the  line  or  as  to  the 
undivided  one-half  of  the  whole.  The  question,  then,  is  whether  or  not, 
under  the  terms  of  the  lease,  the  defendants  acquired  such  a  right  in  the 
premises  as  authorized  them  to  make  the  opening. 

The  opening,  as  first  made,  was  between  four  and  five  feet  wide  and 
seven  or  eight  feet  high.  The  bricks  and  mortar  were  actually  removed, 
and  these  composed  an  essential  part  of  the  building  itself. 

Pitney,  V.  C.  Now,  it  seems  to  me  too  plain  for  argument  that  such  an 
abstraction  amounted  to  waste  at  the  common  law.  It  was  a  "spoil"  and 
"destruction,"  pro  tanto,  of  the  building.  2  Bouv.  Law  Diet.  tit. 
"Waste;"  6  Jac.  Law  Diet.  tit.  "Waste"  393  (at  p.  399),  where  the  author 
uses  this  language,  citing  authorities : 

"  If  a  lessee  flings  down  a  wall  between  a  parlor  and  a  chamber,  by 
which  he  makes  a  parlor  more  large,  it  is  waste ;  it  cannot  be  intended  for 
the  benefit  of  the  lessor,  nor  is  it  in  the  power  of  the  lessee  to  transpose 
a  house.  So,  if  he  pulls  down  a  partition  between  chamber  and  chamber, 
it  is  waste.  Or,  if  a  lessee  pulls  down  a  hall  or  parlor  and  makes  a  stable 
of  it,  it  is  waste.  If  a  lessee  pulls  down  a  garret  overhead,  and  makes 
it  all  in  one  and  the  same  thing,  it  is  waste.  Breaking  of  a  wall  covered 
with  thatch,  and  of  a  pale  of  timber  covered,  is  waste." 

To  the  same  effect  precisely  arc  7  Bac.  Abr.  tit.  "  Waste  "  (at  p.  256) 
and  Tayl.  Land  &  T.,  §  348;  Kerr.  Inj.  250,  251,  where  the  author 
says: 

"  An  alteration  of  l)nn(lings  which  changes  their  nature  and  character 
is  waste,  oven  although  the  value  of  the  premises  be  thereby  increased. 
Thus,  the  converting  two  chambers  into  one,  or  e  converso,  or  the  con- 
verting a  hand-mill  into  a  horse-mill,  or  a  corn-mill  into  a  fulling-mill, 
or  a  malt-mill  to  a  corn-mill,  or  a  logwood-mill  to  a  cotton-mill,  have 
been  hcjld  to  bo  waste.  So,  also,  the  conversion  of  a  private  house  into  a 
shop  i.s  waste.  So,  also,  may  the  building  of  a  new  house  where  there 
was  one  before  be  waste  if  it  impair  the  evidence  of  title." 

And  he  cites  Lord  Romilly^  in  Smith  v.  Carter,  18  Beav.  78,  for 


CHAP.  I.]  KLIE  V.  VON  BROOCK  669 

authority  that  a  tenant  will  be  restrained  from  pulling  down  a  house 
and  building  another,  which  the  landlord  objected  to.  "  It  is  not  suffi- 
cient," said  his  lordship,  "  that  the  house  proijosed  to  be  built  is  a  better 
one.  The  landlord  has  a  right  to  exercise  his  own  judgment  and  caprice 
whether  there  shall  be  a  change;  if  he  objects  the  court  will  not 
allow  a  tenant  to  pull  down  one  house  and  build  another  in  its  place." 

And  see  1  Wash.  Real.  Prop.  113,  where  the  learned  author  adopts 
the  rule  as  laid  down  by  Lord  Rom  illy. 

This  restriction  on  the  right  of  a  tenant  for  years  is  based  upon  the 
character  of  his  tenancy.  "  He  has  the  use,  but  not  the  dominion  of  the 
property."     Farrant  v.  Thompson,  5  Barn.  &  Aid.  826,  per  Mr.  Justice 

IIOLROYD. 

Evidence  was  given  as  to  whether  or  not  the  destruction  in  this  case 
materially  injured  the  party  wall.  I  think  that  the  weight  of  the  evidence 
is  that  it  did  materially  injure  it.  The  wall  itself,  being  only  twelve 
inches  in  thickness,  was,  at  best,  a  very  slight  affair  to  maintain  a  four- 
story  building;  so  much  so,  that  it  will,  sooner  or  later,  require  a  shoring 
on  each  side.  Now  it  seems  to  be  contrary  to  common  knowledge  and 
common  sense  to  say  that  taking  out  and  absolutely  abstracting  a  piece 
of  the  wall  four  or  five  feet  wide  and  seven  or  eight  feet  high,  will  not 
weaken  it,  and  materially  weaken  it.  A  contrary  view  would  result  in 
holding  that  several  such  openings  could  be  made  in  this  wall  without 
injuring  the  building. 

Then  the  evidence  satisfies  me  that  the  attempt  to  properly  secure  and 
support  the  wall  over  the  opening  was  not  well  carried  out,  and  was  not 
successful.  New  jambs  of  brick  were  added  to  the  ragged  edges  of  the 
opening,  in  order  to  make  it  square  and  proper  to  be  stopped  by  doors. 
Those  jambs,  being  of  new  material,  required  the  greatest  care  in  their 
construction  in  order  to  make  them  unite  and  be  homogeneous  with  the 
old  work,  but  the  complainants'  architect  swears  that  upon  an  inspection 
made  during  the  hearing  he  found  a  crack  and  opening  between  the  new 
and  the  old  work.  Then  iron  beams  or  lintels  were  placed  upon  these  new 
jambs  to  sustain  the  weight  of  the  wall  above.  The  architect  in  question 
gave  it  as  his  opinion — and  I  agree  with  him — that  the  proper  mode  of 
sustaining  those  lintels  was  to  place  them  upon  iron  plates,  placed  in 
turn  upon  the  top  of  the  old  part  of  the  wall  on  each  side,  and  then  to 
key  them  up  with  iron  wedges  so  as  to  make  them  bear  up  and  press 
against  the  old  brick  work.  Instead  of  this,  they  were  simply  laid  upon 
the  bare  bricks  of  the  new  jambs,  which,  as  we  have  seen,  were,  from 
defective  construction,  insufficient  for  that  purpose.  The  result  of  this 
mode  of  adjusting  them  was  to  render  them  substantially  useless  so  far 
as  regards  preventing  any  subsidence  in  the  wall  above  the  opening. 
The  architects  called  by  the  defendants  swear  that  the  opening  was  made 
in  the  usual  manner,  and  well  done.  But  I  cannot  accept  their  judgments 
on  this  subject.    It  seems  to  me  they  are  not  sound. 

But,  in  my  judgment,  the  test  in  such  a  case  is  not  alone  whether  a 


670  KLIE  V.  VON  BROOCK  [part  ii. 

material  injury  is  done  to  the  building,  but  whether  it  is  altered  in  a 
naaterial  manner,  and  to  an  extent  beyond  what  is  fairly  implied  from 
the  terms  of  the  original  contract  of  letting. 

It  is  said  by  the  treatise  writers,  and  authorities  are  cited  for  the 
position,  that  the  severity  of  the  ancient  rule  of  waste  has  been  relaxed, 
and  that  many  alterations  are  now  held  not  waste,  which  in  ancient  times 
would  have  been  held  as  waste.  I  have  examined  the  cases  which  are  said 
to  illustrate  this  modification,  and  my  conclusion  is  that  in  most  of  them 
a  permission  by  the  owner  to  the  tenant  to  alter  and  change  the  building 
is  either  found  in  the  terms  of  the  demise,  or  is  to  be  implied  from  the 
circumstances  of  the  case.  Thus,  if  the  owner  of  a  dwelling  in  a  neigh- 
borhood which  is  rapidly  being  converted  from  a  dwelling  region  into 
a  business  region,  lets  it  to  a  party  for  a  long  term  of  years,  knowing 
that  he  expects  to  use  it  for  business  purposes,  that,  by  implication,  is 
permission  to  him  to  make  such  alterations  as  are  necessary  and  usual 
for  that  purpose.  And  so  where  a  demise  is  made  for  a  great  number 
of  years — say  one  hundred  or  two  hundred — for  a  fair  rental  value  of 
the  premises,  there  it  must  be  presumed  that  the  parties  intended  that 
the  tenant  for  years  should  have  well-nigh  unrestricted  use  of  the  premi- 
ses, provided  he  does  not  reduce  their  rental  value.  For,  in  such  a  case, 
the  reversion,  independent  of  the  rent,  is  of  mere  nominal  value. 

So,  I  should  say  that  if  a  building  be  erected  and  let  for  a  hotel,  and 
through  oversight  or  miscalculation  some  mistake  in  the  interior  ar- 
rangements occurs  which  materially  interferes  with  its  beneficial  use 
for  that  purpose,  and  requires  a  change,  it  is  probable  that  the  right  to 
make  such  change  could  properly  be  inferred  from  the  circumstances. 
An  illustration  is  found  in  this  case.  At  the  special  request  of  the 
tenants  the  landlords  divided  the  basement  into  two  parts  by  a  cross- 
wall  of  brick,  not  a  part  of  the  original  plan  and  not  necessary  for  the 
support  of  the  building.  This  was  done  in  order  to  keep  the  heat  of  the 
range  in  the  kitchen  from  penetrating  to  the  front  part  of  the  basement. 
When  the  building  came  into  actual  use  it  was  found  that  this  wall  was 
an  injury  rather  than  a  benefit,  and  was  in  whole  or  in  part  removed  by 
the  defendants.  They  assert  that  it  was  done  with  the  consent  of  the 
landlords;  but  the  landlords  deny  this.  Be  that  as  it  may,  I  think  it  was 
not  waste,  and  its  removal  was  not  relied  upon  as  part  of  complainants' 
case. 

The  cases  in  this  country  relied  upon  to  show  an  amelioration  of  the 
strict  English  rule  are  Jackson  v.  Tibbits,  3  Wend.  341,  and  Winship  v. 
Pitts,  3  Paige  2.59. 

Jackson  v.  Tibbits  was  an  ejectment  by  landlord  against  tenant. 
based  upon  waste  committed  by  the  tenant  in  the  leased  premises,  which 
were  a  tavern  in  the  village  of  Utica,  and  the  waste  was  the  cutting  a 
door  between  two  rooms  in  the  second  story,  and  putting  a  window  in  the 
df)f)r  of  the  cellar  kitchen.  It  appeared  that  thoy  wore  beneficial,  and  not 
injuricjus,   to   the  premises.     The  judge,  at  the  trial,  charged  the  jury 


CHAP.  I.]  KLIE  V.  VON  BROOCK  671 

that  they  amounted  to  waste  and  worked  a  forfeiture  of  the  defendants* 
rights  in  all  the  premises.  There  was  evidence,  however,  of  waiver  by  the 
plaintiff  of  the  waste.  The  opinion  was  per  curiam,  by  Mr.  Justice 
Marcy,  and  he  granted  a  new  trial,  not  only  on  the  ground  that  the 
act  committed  was  not  waste,  but  also  that,  according  to  the  authorities, 
the  whole  premises  were  not  forfeited,  but  only  the  part  wasted;  and 
further,  that  there  was  proof  from  which  the  jury  might  have  inferred  a 
waiver.  Of  course,  in  considering  the  effect  of  this  case,  and  others  like 
it,  we  must  bear  in  mind  that  the  courts  are  always  anxious  to  save  an 
actual  forfeiture  of  the  term. 

Winship  V.  Pitts,  supra,  was  decided  by  Chancellor  Walworth.  There 
a  tenant  of  a  corner  lot,  which  had  vacant  land  in  the  rear  abutting 
on  a  side  street,  proposed  to  erect  a  stable  there,  and  the  landlord,  own- 
ing other  property  in  the  neighborhood,  filed  a  bill  for  an  injunction. 
The  Chancellor  held  that  the  mere  erection  of  a  stable  on  vacant  land 
was  not  waste.  In  fact,  it  never  was  waste;  a  dictum  to  the  contrary  by 
Lord  Coke  was  very  shortly  afterward  overruled. 

After  a  full  review  of  all  the  cases  in  both  countries,  Professor 
Dwight,  sitting  in  the  commission  of  appeals,  in  Agate  v.  Lowenbein,  57 
N.  T.  604,  declares  that  "  there  can  be  no  pretence  of  any  relaxation 
of  the  rule  against  waste  in  the  case  of  tearing  down  houses  or  taking 
away  inner  walls  or  partitions.  It  would  be  difficult  to  set  any  limits  to 
such  acts  by  judicial  decisions.  Where  such  changes  are  desired  they 
should  be  left  to  the  agreement  of  the  parties."  In  this  view  I  heartily 
concur. 

Then  there  is  a  distinction  taken  by  the  judges  between  an  alteration 
in  the  outside  walls  of  a  building  forming  a  property  boundary  and  those 
more  trifling  alterations  which  may  be  made  in  the  interior  partitions — 
taking  away  or  cutting  a  door  through  an  interior  partition  or  altering 
a  street  window  into  a  door.  As  late  as  1817  Lord  Ellenborough,  after 
hearing  the  most  distinguished  counsel  of  the  day,  held  that  the  cutting 
of  a  doorway  through  the  outside  wall  of  a  demised  house  into  an  ad- 
joining house  and  keeping  it  open  for  a  long  space  of  time,  amounted  to 
a  breach  of  a  covenant  to  repair,  which  was  a  continuing  breach,  and 
which  caused  a  forfeiture  and  entitled  the  landlord  to  recover  in  an  action 
of  ejectment  against  his  tenant.  Doe,  ex  dem.  Vickrey,  v.  Jackson,  2 
Stark,  260. 

In  Doe  V.  Jones,  4  B.  &  Ad.  126,  attempt  was  made  to  forfeit  a  lease 
on  account  of  a  breach  of  covenant  to  repair.  The  term  was  for  forty 
years,  and  the  lease  contained  a  covenant  to  keep  in  repair  the  premises 
"  and  all  such  buildings,  improvements  and  additions  as  shall  be  made 
by  the  lessee  during  the  term,"  with  a  proviso  for  re-entry  in  case  of 
breach.  The  lessee  changed  the  lower  windows  opening  on  the  street, 
and  stopped  up  a  doorway,  making  a  new  one  in  a  different  place  in  an 
interior  partition  of  the  house,  and  it  was  held  that  there  was  no  waste 
because  it  appeared  that  the  changes  were  not  injurious  and  were  con- 


672  KLIE  V.  VON  BROOCK  [part  ii. 

templated  by  the  language  of  the  lease.  Doe  v.  Jackson,  supra,  was  cited, 
but  the  judges  distinguished  it  on  the  ground  that  in  that  case  the  break- 
ing was  of  a  wall  between  two  houses,  and  not  in  an  interior  partition 
of  the  house. 

Young  V.  Spencer,  10  B.  &  C.  145,  was  an  action  on  the  case  by  land- 
lord against  tenant  for  injury  to  the  leased  premises.  It  appeared  that 
the  defendant  had  opened  a  door  from  the  house  into  the  street,  and  the 
jury  found  specially  that  no  injury  was  done  to  the  house  itself  or  to  any 
of  the  other  houses  owned  by  the  plaintiff  on  that  street.  The  judge 
directed  a  judgment  for  the  plaintiff,  but  the  court  held  that  it  was  for 
the  jury  to  say  whether  there  was  any  injury  to  the  plaintiff's  reversion- 
ary right,  and  granted  a  new  trial. 

Some  of  the  authorities  cited  by  the  defendants'  counsel  were  cases 
of  equitable  waste,  and  so  not  applicable  here ;  the  distinction  being  that 
equitable  waste  is  an  abuse  by  a  tenant,  without  impeachment  of  waste,  of 
his  legal  right  to  commit  waste. 

I  can  find  no  authority  holding  that  a  breach  in  and  partial  destruction 
of  a  wall  dividing  the  demised  premises  from  those  adjoining  owned  by 
another  party  is  not  waste. 

In  the  present  instance  there  can  be  no  pretence  that  the  right  to  make 
such  a  breach  can  be  implied  from  anything  contained  in  the  contract  or 
found  in  the  circumstances  surrounding  its  inception  and  conclusion. 
The  building  was  designed  especially  for  a  restaurant,  to  be  used  in  con- 
nection with  the  complainants'  liquor  saloon,  and  the  defendants  were 
consulted  and  knew  and  agreed  to  all  the  details  of  its  construction. 
Indeed,  in  their  answer  they  claim  a  greater  voice  in  those  details  than 
the  complainants  admit.  It  was  not  contended  that,  as  constructed,  it  did 
not  answer  the  expectation  of  the  parties.  There  was  and  can  be  no 
pretence  that  the  change  effected  by  the  opening  in  question  tends  to 
make  the  building  more  convenient  for  the  use  for  which  it  was  designed 
and  leased. 

These  considerations  lead  to  the  conclusion  that  the  case  is  not  covered 
by  any  well-considered  authority  in  which  tenants  have  been  held  justified 
in  changes  of  this  character. 

Fourth,  as  to  the  remedy. 

In  the  prayer  of  complainants'  bill  they  ask  that  the  defendants  may 
be  ordered  either  to  restore  the  opening  in  the  party  wall,  or  to  give 
security  for  its  restoration  at  the  end  of  the  term.  By  thus  praying  for 
alternative  relief  T  understand  that  the  complainants  did  not  intend  to 
give  to  the  defendants  an  option  of  submitting  to  the  latter  remedy,  but 
simply  to  ask  that  the  court  should  give  it  if  the  first  remedy  of  imme- 
diate restoration  was  not  considered  by  the  court  proper  and  equitable. 
The  defendants,  by  their  answer,  and  at  the  hearing,  offered  to  give 
security  for  restoration  at  the  end  of  the  term,  but  complainants  at  the 
hearing  insisted  upon  immediate  restoration. 

It  is  well  settled  that  complainants  are  entitled  to  immediate  relief, 


<;hap.  I.]  KLIE  v.  VON  BROOCK  673 

and  are  not  obliged  to  wait  until  the  end  of  the  term.  Agate  v.  Lowen- 
bein,  57  N.  Y.  C04,  and  cases  cited  at  p.  612  et  seq. 

In  the  present  case  the  waste  was  committed  against  the  known  wishes 
and  protest  of  complainants,  and  with  such  haste  that  it  was  substantially- 
completed  before  comi^lainants  could  obtain  preventive  relief  from  this 
court. 

In  the  somewhat  similar  case  of  Bonnett  v.  Sadler,  14  Ves.  526,  Lord 
Eldon  did  not  think  it  inequitable.  In  that  case  the  complainants 
were  the  jjroprietors  of  a  carriage  factory  and  salesroom,  and  owned  an 
adjoining  house,  which  was  a  dwelling.  The  defendants  leased  the 
dwelling,  concealing  from  the  complainants  the  fact  that  they  intended 
to  set  up  a  rival  establishment,  and  after  getting  possession  proceeded  to 
change  the  front  and  interior  of  the  building  so  as  to  make  it  fit  for  that 
purpose,  and  Lord  Eldon  remarked  upon  their  conduct  in  that  respect 
as  inequitable.  And  Lord  Selborke,  in  Goodson  v.  Richardson,  L.  R.  9 
Ch.  App.  221,  1874,  at  p.  224,  spoke  approvingly  of  a  landowner,  who 
was  interested  in  a  water  company,  standing  on  his  strict  rights  in  equity 
to  prevent  a  rival  company  from  laying  its  water  mains  in  the  street  in 
front  of  his  lands. 

The  presumption  is  that  the  restriction  against  selling  liquors  con- 
tained in  the  lease  affected  the  amount  of  the  rent.  At  all  events,  the  com- 
plainants are  entitled  to  the  benefit  of  their  contract,  and  are  justified 
in  using  all  legal  means  to  preserve  it. 

For  these  reasons  complainants,  in  my  judgment,  have  a  clear  right  to 
relief  in  this  court. 

The  authorities  justify  the  use  of  a  mandatory  injunction  in  such 
cases.  The  leading  case  is  Vane  v.  Lord  Barnard,  2  Vern,  738,  known 
as  the  Raby  Castle  Case.  This  was  followed  by  Rolt  v.  Lord  Somer- 
ville,  1737,  decided  by  Lord  Hardwicke  and  reported  in  3  Eq.  Cas. 
Abr.  at  p.  759,  where  there  was  a  cutting  of  trees  and  also  pulling 
down  houses  and  buildings.  The  prayer  was  that  the  premises  might 
be  restored.  Lord  Hardwicke  said  that  he  could  not  compel  the  restora- 
tion of  the  trees,  but  he  said,  "  yet,  as  to  the  pulling  down  the  houses  and 
buildings  and  laying  the  lead  pipes  they  may  be  restored  or  put  in  as 
good  condition  again,"  citing  with  approbation  the  case  of  Vane  v. 
Lord  Barnard. 

I  think  the  present  a  proper  case  for  immediate  restoration. 

I  will  advise  a  decree  that  the  defendants  be  restrained  from  permitting 
the  opening  in  the  party  wall,  made  by  them  on  or  about  May  10th, 
1896,  to  remain  in  its  present  condition,  or  from  permitting  the  party 
wall  between  the  leased  premises  and  those  of  the  Hoboken  Land  and 
Improvement  Company  on  the  west,  to  be  in  any  other  condition  than 
it  was  prior  to  the  opening  made  therein  by  the  defendants ;  and  further, 
if  complainants  desire  themselves  to  do  the  work  of  restoration,  then  that 
the  defendants  be  restrained  from  preventing  the  complainants  from  so 
doing,  at  a  reasonable  time  and  in  a  reasonable  manner,  and  the  court 


674  ■     WHITFIELD  v.  BEWIT  [part  ii. 

will  name  a  special  master,  under  whose  supervision  the  work  of  restora- 
tion shall  be  done,  if  the  parties  cannot  agree  thereupon.  The  provision 
for  restoration  may  also  include  the  window  opening  upon  the  area,  if 
the  brickwork  has  not  already  been  restored  to  its  original  condition/ 


WHITFIELD  V.  BEWIT. 

In  Chancery^  before  Lord  Chancellor  Macclesfield,  1724. 

[2  Peere  Williams  240.] 

One  seised  in  fee  of  lands  in  which  there  were  mines,  all  of  them  un- 
opened, by  deed  conveyed  those  lands  and  all  mines,  waters,  trees,  etc., 
to  trustees  and  their  heirs,  to  the  use  of  the  grantor  for  life  (who  soon 
after  died),  remainder  to  the  use  of  A.  for  life,  remainder  to  his  first, 
etc.,  son  in  tail  male  successively,  remainder  to  B.  for  life,  remainder  to 
his  first,  etc.,  son  in  tail  male  successively,  remainder  to  his  two  sisters 
C.  and  D.  and  the  heirs  of  their  bodies,  remainder  to  the  grantor  in  fee. 

A.  and  B.  had  no  sons,  and  C,  one  of  the  sisters,  died  without  issue^ 
by  which  the  heir  of  the  grantor,  as  to  one  moiety  of  the  premises,  had 
the  first  estate  of  inheritance. 

A.,  having  cut  down  timber,  sold  it  and  threatened  to  open  the  mines; 
the  heir  of  the  grantor  being  seised  of  one  moiety  ut  supra  by  the  death 
of  one  of  the  sisters  without  issue,  brought  this  bill  for  an  account  of  the 
moiety  of  the  timber  and  to  stay  A.'s  opening  of  any  mine. 

*  "The  American  doctrine  on  the  subject  of  waste  is  somewhat  varied  from 
the  English  law  and  is  more  enlarged,  and  better  accommodated  to  the  circum- 
stances of  a  new  and  growing  country,"  4  Kent's  Commentaries  76;  see  also 
the  opinion  of  Van  Syckel,  J.,  in  Gaines  v.  Green  Pond  Iron  Co.  et  al.,  1881, 
33  N.  J.  Eq.  603. 

"The  doctrines  of  the  Common  Law,  however,  require  considerable  mod- 
ifications when  they  are  applied  to  social,  domestic,  and  political  conditions 
different  from  those  which  prevail  in  the  country  of  its  origin.  And  their  in- 
herent wisdom  is  strikingly  manifested  in  the  ease  and  flexibility  with  which 
they  were  adapted  to  new  and  altered  circumstances.  The  law  of  waste,  as 
understood  in  England,  would  have  made  it  impossible  for  tenants  to  cultivate 
the  wild  lands  of  this  country."  Per  Bryan,  J.,  in  Crowe  v.  Wilson,  1886,  65 
Mo.   479,  481. 

"Following  the  same  general  line  of  reasoning,  it  was  early  held  in  the 
United  States  that,  while  the  English  doctrines  as  to  waste  was  a  part  of  our 
American  law,  still  the  cutting  of  timber  in  order  to  clear  up  wild  land  and 
fit  it  for  cultivation,  if  consonant  with  the  rules  of  good  husbandry,  was  not 
wa.ste,  altbougli  such  acts  would  have  been  clearly  waste  in  England."  Per 
WlNBLOW,  J.,  in  Mclro.se  v.  Pabst  Brewing  Co.,  1809,  104  Wise.  7,  11. 


CHAP.  I.]  WHITFIELD  v.  BEWIT  675 

1st  Obj.  As  to  the  plaintiff's  claim  of  the  moiety  of  the  moneys  arising 
by  sale  of  the  timber,  in  regard  the  plaintiff  comes  into  equity  for  the 
same,  it  would  be  more  agreeable  to  the  rules  of  equity  that  the  moneys 
produced  by  the  timber  should  be  brought  into  court  and  put  out  for 
the  benefit  of  the  sons  as  yet  unborn  and  which  may  be  born.  That  these 
contingent  remainders  being  in  gremio  legis  and  under  the  protection  of 
the  law,  it  would  be  most  reasonable  that  the  moneys  should  be  secured 
for  the  use  of  the  sons  when  there  should  be  any  born ;  but  as  soon  as  it 
became  impossible  there  should  be  a  son,  then  a  moiety  to  be  paid  to  the 
plaintiff;  and  the  case  would  be  the  same  if  there  were  a  son  in  ventre  sa 
mere;  or  the  plaintiff  might  bring  trover,  and  then  what  reason  had  he 
to  come  into  equity  ? 

Cur. :  The  right  to  this  timber  belongs  to  those  who  at  the  time  of  its 
being  severed  from  the  freehold  were  seised  of  the  first  estate  of  inherit- 
ance, and  the  projoerty  becomes  vested  in  them. 

As  to  the  objection  that  trover  will  lie  at  law,  it  may  be  very  necessary 
for  the  party  who  has  the  inheritance  to  bring  his  bill  in  this  court,  be- 
cause it  may  be  impossible  for  him  to  discover  the  value  of  the  timber,  it 
being  in  the  possession  of,  and  cut  down  by,  the  tenant  for  life.  This  was 
the  very  case  of  the  Duke  of  Newcastle  v.  Mr.  Vane,  where  at  Welbeck 
(the  Duke's  seat  in  Nottinghamshire)  great  quantities  of  timber  were 
blown  down  in  a  storm;  and  though  there  were  several  tenants  for  life, 
remainder  to  their  first  and  every  other  son  in  tail,  yet  these  having  no 
sons  born,  the  timber  was  decreed  to  belong  to  the  first  remainderman  in 
tail. 

Neither  do  I  think  the  defendant  ought  (as  he  insists)  to  be  allowed 
out  of  this  timber  what  money  he  has  laid  out  in  timber  for  repairs,  since 
it  was  a  wrong  thing  to  cut  down  and  sell  the  same,  and  shows  quo  animo 
it  was  done,  not  to  repair  but  to  sell. 

Secondly,  it  was  urged  that  the  mines,  being  expressly  granted  by  this 
settlement  with  the  lands,  it  was  as  strong  a  case  as  if  the  mines  them- 
selves were  limited  to  A.  for  life,  and  like  Saunder's  Case  in  5  Co.  12, 
where  it  is  resolved,  that  on  a  lease  made  of  land  together  with  the  mines, 
if  there  be  no  mines  open,  the  lessee  may  open  them ;  so  in  this  case,  there 
being  no  mines  open,  the  cestui  que  use  for  life  might  open  them. 

But  Lord  Chancellor,  contra.  A.  having  only  an  estate  for  life  subject 
to  waste,  he  shall  no  more  open  a  mine  than  he  shall  cut  down  the  timber 
trees,  for  both,  are  equally  granted  by  this  deed ;  and  the  meaning  of  in- 
serting mines,  trees,  and  water  was,  that  all  should  pass,  but  as  the 
timber  and  mines  were  part  of  the  inheritance,  no  one  should  have  power 
over  them  but  such  as  had  an  estate  of  inheritance  limited  to  him. 

Of  which  opinion  was  Lord  Chancellor  King  on  a  rehearing. 


67G  BATEMAN  v.  HOTCHKIN  [part  ii. 

BEWICK  V.  WHITFIELD. 

In  Chancery,  before  Lord  Chancellor  Talbot,  1734. 

[3  Peere  Williams  267.] 

A.  was  tenant  for  life,  remainder  to  B.  in  tail,  as  to  one  moiety,  re- 
mainder as  to  tlie  other  moiety  to  C.  an  infant  in  tail,  remainder  over. 
There  was  timber  upon  the  premises  greatly  decaying;  whereupon  B.  the 
remainderman,  brought  a  bill,  praying,  that  the  timber  that  was  decay- 
ing might  be  cut  down  and  that  the  plaintiff  the  remainderman 
in  tail,  together  with  the  other  remainderman,  the  infant,  might  have 
the  money  arising  by  the  sale  of  this  timber.  On  the  other  hand,  the 
tenant  for  life  insisted  to  have  some  share  of  this  money. 

Lord  Chancellor.  The  timber,  while  standing,  is  part  of  the  inheri- 
tance ;  but  whenever  it  is  severed,  either  by  the  act  of  God,  as  by  tempest, 
or  by  a  trespasser  and  by  wrong,  it  belongs  to  him  who  has  the  first  estate 
of  inheritance,  whether  in  fee  or  in  tail,  who  may  bring  trover  for  it ;  and 
this  was  so  decreed  upon  occasion  of  the  great  windfall  of  timber  on  the 
Cavendish  estate. 

Secondly.  As  to  the  tenant  for  life,  he  ought  not  to  have  any  share  of 
the  money  arising  by  the  sale  of  this  timber;  but  since  he  has  a  right 
to  what  may  be  sufficient  for  repairs  and  botes,  care  must  be  taken  to 
leave  enough»upon  the  estate  for  that  purpose;  and  whatever  damage  is 
done  to  the  tenant  for  life  on  the  premises  by  him  held  for  life,  the  same 
ought  to  be  made  good  to  him. 

Thirdly.  With  regard  to  the  timber  plainly  decaying,  it  is  for  the  bene- 
fit of  the  persons  entitled  to  the  inheritance,  that  it  should  be  cut  down, 
otherwise  it  would  become  of  no  value;  but  this  shall  be  done  with  the 
approbation  of  the  Master;  and  trees,  though  decaying,  if  for  the  defence 
and  shelter  of  the  house,  or  for  ornament,  shall  not  be  cut  down.  B.,  that 
is,  the  tenant  in  tail  (and  of  age),  of  one  moiety,  is  to  have  a  moiety  of 
the  clear  money  subject  to  such  deductions  as  aforesaid,  the  other  moiety 
belonging  to  the  infant,  must  be  put  out,  for  the  benefit  of  the  infant 
on  government  or  real  securities,  to  be  approved  of  by  the  Master. 


BATEMAN  v.  HOTCHKIN. 

In  Chancery,  before  Lord  Eomilly,  M.  K.,  1862. 

[31  Beavan  486.] 

A  question  arose  as  to  the  right  of  a  tenant  for  life  impeachable  for 
waste  to  a  fund  derived  i^artly  from  wood  blown  down  by  a  storm. 

The  <iufstion  was  brouglit  before  the  Master  of  the  Bolls  in  Chambers, 
who  gave  tlio  following  opinion  in  writing: — 

"That  in  tlie  case  of  waste  committed  by  a  tenant  for  life  by  cutting 


CHAP.  I.]  In  re  BAEEINGTON  677 

timber,  the  produce  of  the  sale  of  it  is  part  of  the  inheritance,  and  as  the 
tenant  for  life  can  {jain  no  advantage  by  his  own  wrongful  act,  the 
produce  is  invested  and  accumulated  for  the  benefit  of  the  first  estate  of 
inheritance. 

"In  the  case  of  timber  blown  down  by  a  storm,  there  is  no  waste,  be- 
cause it  is  the  act  of  God,  but  the  produce  of  the  sale  of  it  belongs  to  the 
inheritance,  that  is,  the  money  must  be  invested  in  consols,  and  the  inter- 
est paid  to  the  tenant  for  life." 

Mr.  Speed  for  the  plaintiff. 

Mr.  C.  Hall  for  the  tenant  for  life. 

The  Master  of  the  Rolls.  I  am  of  opinion  that  the  tenant  for  life  is 
entitled  to  have  the  benefit  of  the  sale  of  all  such  trees  felled  by  the  wind 
as  he  would  be  entitled  to  cut  himself,  and  to  all  fair  and  proper  thin- 
nings, and  to  all  coppices  cut  periodically  in  the  nature  of  crops. 

There  must  be  an  inquiry  to  ascertain  what  part  of  the  fund  is  derived 
from  timber  or  cuttings  within  that  description. 


In  re  BARRINGTON. 

Gamlen  v.  Lyon. 

In  the  Supreme  Court  of  Judicature,  Chancery  Division,  1886. 

[Lavj  Reports,Z3  Chancery  Division  523.] 

Francis  Lyon  Barrington  was  owner  in  fee  of  certain  coal  mines  at 
Binchester  in  the  County  of  Durham,  but  not  of  the  surface  above  such 
mines.  These  coal  mines  were  worked  at  certain  royalties  under  a  lease 
granted  by  Mr.  Barrington  for  a  term  of  thirty-one  years  from  the  1st  of 
May,  1872.  By  his  will,  dated  the  Ist  of  December,  1876,  Mr.  Barrington 
devised  his  collieries  at  Binchester  (subject  to  a  mortgage  and  an  annu- 
ity) to  trustees  upon  trust  for  the  Dowager  Viscountess  Barrington  for 
life  without  impeachment  of  waste,  and  after  her  death  for  the  defendant, 
the  Hon.  Francis  Bowes  Lyon,  for  life  without  impeachment  of  waste, 
with  limitations  over.  The  testator  died  on  the  15th  of  January,  1877, 
and  Lady  Barrington  died  on  the  23rd  of  March,  1883. 

During  her  lifetime  and  after  her  death  certain  of  the  coal  was  got 
by  the  owners  of  neighbouring  collieries  working  by  instroke  from  their 
collieries,  such  neighbouring  owners  having  inadvertently  thus  tres- 
passed beyond  their  proper  boundaries.  This  working  began  in  October, 
1882 ;  the  mistake  was  discovered  in  December,  1884,  when  the  w^orking 
was  discontinued}  and  the  neighbouring  owners  subsequently  paid  the 


678  In  re  BARRINGTON  [part  ii. 

sum  of  £839  7s.  2d.  as  compensation  for  the  coal  which  they  had  thus 
gotten. 

Kay^  J.'  (after  stating  the  facts  with  reference  to  the  coal  won  by  the 
innocent  trespass  of  the  owners  of  adjoining  collieries,  continued)  : — 

The  question  is  to  whom  the  moneys  in  respect  of  such  trespass  belong. 
The  point  seems  to  be  completely  determined  by  authority.  No  doubt, 
if  a  tenant  for  life  who  is  impeachable  of  waste  improperly  commits  waste 
by  cutting  trees  or  digging  minerals,  such  trees  or  minerals  when  severed 
become  at  once  the  property  of  the  owner  of  the  first  estate  of  inheritance 
in  esse.  Uvedall  v.  Uvedall,  2  Eoll.  Abr.  119;  Whitfield  v.  Bewit,  2  P. 
Wms.  240;  Bewick  v.  Whitfield,  3  Ibid.  267.  And  in  such  case  an  inter- 
mediate tenant  for  life  without  impeachment  or  waste  cannot  recover  the 
proceeds  in  trover.  Pigot  v.  Bullock,  1  Ves.  479,  484.  The  reason  for 
this  seems  to  be  that  he  had  no  right  to  the  timber  cut  before  his  estate 
came  into  possession. 

The  same  law  applies  the  timber  be  severed  by  the  act  of  God,  as  by 
tempest,  or  by  a  trespasser:  see  Bewick  v.  Whitfield. 

On  the  other  hand,  if  the  severance  be  in  the  lifetime  of  a  tenant  for 
life  who  is  unimpeachable  of  waste  the  severed  portion  of  the  inheritance 
belongs  to  such  tenant  for  life.  In  an  anonymous  case  in  Moseley,  page 
238,  the  Master  of  the  Rolls  stated :  "  It  is  now  settled  at  law  that  if  a 
stranger  cut  down  timber,  or  commit  any  other  waste,  it  belongs  to  the 
tenant  for  life,  who  is  dispunishable  of  waste,  and  not  to  the  remainder- 
man in  tail,  or  in  fee."  This  was  followed  by  Lord  Chief  Justice  Mans- 
field in  Pyne  v.  Dor,  1  T.  R.  55,  56,  who  said,  "that  a  tenant  for  life 
without  impeachment  of  waste,  has  a  right  to  the  trees  the  moment  they 
are  cut  down." 

And  in  Bagot  v.  Bagot,  32  Beav.  509,  and  on  appeal,  33  L.  J.  Ch. 
122,  n,  the  law  as  to  timber  and  minerals  is  treated  as  being  precisely 
identical." 

I  am,  therefore,  of  opinion  that  the  proceeds  of  the  minerals  worked 
during  the  respective  lifetimes  of  Lady  Barrington  and  the  defendant 
belong  to  her  estate  and  to  the  defendant  respectively.' 

^A  portion  of  the  case  and  of  the  opinion  is  omitted. 

^For  a  t'oniprelionsive  and  technical  definition  and  enumeration  of  timber  see 
Ilonywood  v.  Honywood,  1874,  L.  R.  18  Eq.  306;  Dashwood  v.  Magniac,  1891, 
3  Ch.  306. 

'The  law  on  the  subject,  tof^ether  with  a  collection  of  cases,  is  admirably 
expressed  in  a  recent  work  of  authority  from  which  the  following  is  quoted: 

"When  the  tenant  has  committed  waste  by  severing  from  the  land  some- 
thing that  is  a  part  of  the  inheritance,  as  a  structiire  or  timber  on  the 
land,  the  thing  so  severed  generally  belongs  to  the  owner  of  the  first  estate  of 
inheritance,  as  it  does  when   severed  by  accident,  as  by  a  windstorm. 

"A  t<'nant  is  entitled  to  the  proceeds  of  such  wood  as  may  be  rightfully  sev- 
ered by  him,  whetlier  he  makes  the  severance,  or  it  is  the  result  of  a  wind- 
storm or  other  action  of  the  elements ;  and  the  same  principle  applies  to  the 
proceeds  of   other   acts   which   do   not   involve   waste.      So,   in   the   case  of   a 


CHAP.  I.]  MOGG  V.  MOGG  679 


Section  2.    Trespass. 

The  reasons  given,  why  this  bill  should  not  be  answered  are  chiefly 
three. 

1st.*  That  what  the  plaintiffs  complain  of  is  but  in  nature  of  a  trespass, 
iind  for  that  they  may  have  remedy  at  law,  but  to  that  it  may  be  answered, 
in  some  cases  even  for  a  trespass  a  bill  is  proper  enough  in  this  court; 
as  where  by  the  secret  contrivance  of  it  a  man  cannot  easily  prove  it; 
as,  for  instance,  if  a  man  in  his  own  ground  digs  a  way  under  ground 
to  my  mineral,  and  the  like.  Per  Lord  Keeper  North,  in  East  India 
Company  v.  Landys,  1682,  1  Vernon  127,  129. 


COULSON  V.  WHITE. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1743, 

[3    Atkyns   21.] 

Lord  Chancellor.  Every  common  trespass  is  not  a  foundation  for  an 
injunction  in  this  Court,  where  it  is  only  contingent  and  temporary;  but 
if  it  continues  so  long  as  to  become  a  nuisance,  in  such  a  case  the  Court 
will  interfere  and  grant  an  injunction  to  restrain  the  person  from  com- 
mitting it. 


MOGG  V.  MOGG. 

In  Chancery,  before  Lord  Chancellor  Thurlow,  1786. 

[DicJcens  670.] 

The  plaintiff  was  a  trustee  of  certain  estates,  and  in  whom  the  legal 
estate  was  vested:  The  defendant  hath  not  any  right,  but  persuaded 
the  tenants  to  cut  down  timber. 

Bill  for  an  injunction  to  stay  waste;  and  this  day  the  plaintiff  moved 
for  an  injunction  accordingly,  upon  filing  the  bill.     It  was  mentioned 

tenancy  without  impeachment  of  waste,  the  proceeds  of  trees  or  minerals 
severed  from  the  land,  either  by  the  elements  or  by  a  stranger,  belong  to  the 
tenant,  as  if  they  were  severed  by  him;  and  he  is  also,  upon  the  vesting  of  his 
estate  in  possession,  entitled  to  the  proceeds  of  a  severance  made  during  the 
possession  of  previous  tenants  for  life,  unimpeachable  of  waste,  under  the 
same  settlement."  1  TiflFany,  Real  Property,  §  256. 
'Only  the   first  is  given. 


680  HAMILTON  v.  WORSEFOLD  [part  ii. 

on  the  11th,  but  the  Lord  Chancellor  desired  Mr.  Madocks  to  see,  if  he 
could  find  an  instance,  where  a  stranger  comes  upon  lands  as  a  trespasser, 
and  cuts  down  timber,  or  commits  waste,  in  which  this  court  hath  granted 
an  injunction  to  stay  him,  saying  he  was  liable  to  an  action  by  which  he 
might  be  stayed. 

On  this  day,  the  13th,  Mr.  Madocks  said  he  had  recollected  a  case  before 
Lord  Camden,  C,  in  which  the  plaintiff  was  lord  of  a  manor  in  Oxford- 
shire, upon  which  the  defendants  claimed  a  right  to  estovers,  and  under 
that  right,  they  cut  down  timber  in  one  day  to  the  value  of  £400;  the 
plaintiff  filed  his  bill  for  an  injunction  to  stay  waste,  and  obtained  one. 
Upon  its  being  served,  their  attorney  advised  the  defendants  to  desist 
from  cutting  down  any  more  timber,  but  advised  other  tenants  of  the 
manor  to  cut  down  timber;  upon  which  Lord  Camden  granted  an  injunc- 
tion to  stay  waste,  against  persons  not  parties,  and  Mr.  Madoeks  argued 
this  as  a  case  in  point. 

The  Lord  Chancellor  said  it  did  not  apply,  for  in  that  case  there  was  a 
right  to  something  in  the  defendants,  though  perhaps  they  carried  it  be- 
yond what  such  a  right  went  to ;  and  that  until  such  right  was  determined,, 
it  was  very  proper  to  stay  them  from  doing  an  act,  which  if  it  turned 
out  they  had  no  right  to  do,  would  be  irreparable :  but  in  the  present  case 
the  defendant  had  no  interest ;  he  was  a  mere  trespasser,  and  being  such, 
an  action  of  trespass  would  lie  against  him ;  and  therefore  his  Lordship 
would  not  grant  the  motion. 


HAMILTON  V.  WORSEFOLD. 

In  Chancery,  before  Lord  Chancellor  Thurlow,  1786. 

[10  Vesey  291  note.y 

The  bill  stated,  that  the  Plaintiff  was  seised  in  fee ;  that  his  title  had  but 
recently  accrued ;  and  the  tenants  had  not  yet  paid  him  any  rent ;  that  the 
Defendant,  Worscfold,  pretended  to  have  some  claim  to  the  estate;  and 
had  given  notice  to  the  tenants  to  pay  their  rent  to  him;  that  he  had 
entered  upon  the  estate  with  the  permission  of  the  other  Defendants, 
the  tenants;  and  had  cut  timber;  and  threatened  to  cut  more.  The  bill 
therefore  prayed,  that  Worsefold  may  be  restrained  from  committing 
waste;  and  that  the  tenants  may  be  restrained  from  permitting  it. 

The  Lord  Chancellor,  upon  the  motion  for  the  injunction,  at  first  had 
some  difficulty  about  granting  it;  Worsefold  being  a  mere  trespasser;  but 
at  length  his  Lordship  granted  the  injunction  against  both  Worsefold 
and  the  tenants.' 

'This  caHG  was  stated  from  a  note  by  Mr.,  afterward  Sir    Samuel  Romilly. 
*  Register's   IJook,   A.    1780,   folio   1. 


CHAP.  I.]  PILLSWORTH  v.  HOPTON  681 

MORTIMER  V.  COTTRELL. 

In  Chancery,  before  Lord  Chancellor  Thurlow,  1789. 

[2  Cox  205.] 

The  defendant  had  for  some  time  acted  under  a  power  from  the  plain- 
tiff as  the  receiver  of  several  rents  of  houses  belonging  to  the  plaintiff, 
and  had  also  been  authorized  by  the  plaintiff  to  dig  earth  in  an  adjoining 
brick-field  to  a  certain  depth  from  the  surface.  The  defendant  having 
dug  beyond  the  limit,  the  plaintiff  revoked  all  powers  of  attorney  made 
to  the  defendant,  and  required  him  to  desist  from  digging  any  further; 
but  the  defendant  continuing  to  dig,  the  plaintiff  filed  this  bill,  praying 
that  the  defendant  might  be  restrained  by  injunction  from  digging  fur- 
ther on  the  premises.  And  the  Solicitor-General  now  moved  for  an 
injunction  on  certificate  of  the  bill  filed  and  affidavit  of  the  fact,  and 
urged  that  as  this  ground  was  intended  for  building,  and  as  it  would  be 
rendered  unfit  for  the  foundation  of  a  house  if  the  ground  was  dug  deeper 
from  the  surface  than  the  limited  depth,  this  was  one  of  that  species  of 
irreparable  mischief  which  this  court  would  prevent  by  injunction. 

But  the  Lord  Chancellor  said,  the  defendant  was  a  mere  stranger ;  that 
he  had  been  guilty  of  a  forcible  entry,  and  that  there  was  no  case  where 
this  court  would  interfere  by  injunction,  when  the  party  was  a  mere 
stranger,  and  might  be  turned  out  of  possession  immediately. 


PILLSWORTH  V.  HOPTON. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1801. 

[6  Vesey  51.] 

Mr.  Thomson,  for  the  plaintiff",  moved  for  an  injunction  to  restrain  the 
defendant  from  committing  waste.  The  defendant  was  in  possession: 
the  tenants  had  attorned ;  and  the  plaintiff  having  brought  an  ejectment, 
had  failed  in  it;  but,  as  the  bill  alleged,  not  upon  the  merits. 

Lord  Chancellor.  I  do  not  recollect,  that  the  court  has  ever  granted  an 
injunction  against  waste  under  any  such  circumstances:  the  defendant 
in  possession ;  the  tenants  having  attorned :  the  plaintiff  having  failed  in 
his  ejectment:  both  setting  up  pretences  of  title.  I  remember  perfectly 
being  told  from  the  bench  very  early  in  my  life,  that  if  the  plaintiff 
filed  a  bill  for  an  account,  and  an  injunction  to  restrain  waste,  stating 


C82  MITCHELL  v.  DOES  [part  ii. 

that  the  defendant  claimed  by  a  title  adverse  to  his,  he  stated  himself  out 
of  court  as  to  the  injunction. 

His  Lordship  having  inquired  if  the  bar  knew  any  instance,  and  none 
being  produced  would  not  make  the  order." 


MITCHELL  V.  DORS. 

In  Chancery,  before  Lord  Eldon,  C,  1801. 

[6  Vesey  147.] 

Mr.  Mansfield  and  Mr.  Bell  moved  for  an  injunction  against  the  de- 
fendant; who  having  begun  to  get  coal  in  his  own  ground  had  worked  into 
that  of  the  plaintiff. 

Lord  Chancellor.  That  is  trespass,  not  waste.  But  I  will  grant  the 
injunction  upon  the  authority  of  a  case  before  Lord  Thurlow  :*  a  person, 

'"The  title  appears  to  be  disputed;  for  the  defendant  has  been  in  possession 
for  a  long  time,  and  has  joined  issue  with  the  plaintiff  at  law  on  the  question 
of  title,  and  the  action  is  still  pending  undetermined.  Under  these  circum- 
stances I  do  not  feel  myself  authorized  to  grant  the  injunction. 

"In  Field  v.  Jackson,  Dickens,  599,  the  Lord  Chancellor  held  it  to  be  a  gen- 
eral rule,  that  when  the  right  was  doubtful,  the  court  would  not  grant  an 
injunction.  So,  in  a  case  before  Lord  Eldon,  Pillsworth  v.  Hopton,  6  Ves.  51, 
an  injunction  to  restrain  waste  Avas  not  granted  against  a  defendant  in 
possession,  claiming  by  an  adverse  title.  If  the  plaintiff,  in  his  bill  states 
such  a  claim  on  the  part  of  the  defendant,  he  states  himself  out  of  court, 
as  to  the  injunction.  In  the  present  case  the  bill  does  state  to  that  effect, 
when  it  states  that  the  defendant  has  been  a  long  time  in  possession,  and  has 
joined  issue  with  the  plaintiff  in  ejectment.  I  must  know  the  result  of  that 
issue  at  law  before  I  can  interfere."  Per  Kent,  in  Storm  v.  Mann,  1819, 
4  Johns.  Ch.  21. 

"The  particular  title  must  be  set  out ;  an  affidavit  merely  that  the  plaintiff 
has  a  fee  simple  is  not  sufficient."  Whitelegg  v.  Whitelegg,  1770,  1  Bro.  C.  C. 
58. 

"This  rule,  i.  e.,  that  the  plaintiff  nnist  show  his  title  clearly,  is  a  simple 
recognition  that  one  is  not  entitled  to  invoke  the  extraordinary  powers  of  a 
court  of  equity  unless  he  can  establish  in  a  manner  satisfactory  to  the  law 
that  he  will  suffer  an  irreparable  injury  in  his  estates.  Unless  the  estates 
be  his,  he  can  suffer  no  injury,  and  unless  the  title  be  in  him,  there  is  no 
estate."    Per  Atkinson,  J.,  in  Flannery  v.  Hightower,  1895,  97  Ga.  592,  602. 

^Flamang's  Case,  cited  by  the  Lord  Chancellor  in  Hanson  v.  Gardner,  1802, 
7   Ves.  .305,   307,   in   which   his  Lordship   said: 

"The  law  as  to  injunctions  has  changed  very  much;  and  lately  they  have 
been  granted  much  more  liberally  than  formerly  they  were.  .  .  .  I  re- 
menibcr,  when  in  a  case  of  trespass,  unless  it  grew  to  a  nuisance,  an  injunc- 
tion would  Ijavc  I)con  refused:  and  oven  in  the  case  of  waste,  if  by  temporary 


CHAP.  I.]  SMITH  V.  COLLYER  683 

landlord  of  two  closes,  had  let  one  to  a  tenant,  who  took  coal  out  of  that 
close,  and  also  out  of  the  other,  which  was  not  demised ;  and  the  difficulty 
was,  whether  the  injunction  should  go  as  to  both;  and  it  was  ordered  as  to 
both. 

The  order  was  made. 


SMITH  V.  COLLYER. 
In  Chancery,  before  Lord  Chancellor  Eldon,  1803. 

[8  Vesey  89.] 

A  motion  was  made  to  restrain  the  defendant  from  cutting  timber. 

The  plaintiffs  claimed  under  a  general  devise  to  them  and  their  heirs 
of  all  and  every  the  devisor's  lands,  etc.,  as  well  freehold  as  copyhold, 
and  all  other  his  real  estates  whatsoever  and  wheresoever.  The  estates 
were  in  mortgage :  but  the  plaintiffs  by  their  guardians  were  in  receipt  of 
the  rents.  The  defendant  put  in  an  answer;  claiming  as  nephew  and 
heir  at  law ;  insisting  that  the  will  was  not  well  executed. 

The  Lord  Chancellor  said,  this  was  quite  a  new  case. 

Mr.  Cooke,  in  support  of  the  motion. 

The  plaintiffs  have  no  means  of  preventing  or  redressing  this  at  law: 
the  mortgagee  having  the  legal  title;  and  the  mischief  will  be  irremedi- 
able ;  no  damages  would  be  a  compensation ;  and  that  is  a  ground  for  the 
jurisdiction ;  as  was  held  in  the  Duke  of  Somerset  v.  Cookson,  3  P.  Will. 
389,  and  Pusey  v.  Pusey,  1  Vern.  273;  in  which  cases  an  action  might 
have  been  brought.  In  this  case  they  both  claim  under  the  same  person ; 
and  the  defendant  is  not  in  possession;  as  in  Pillsworth  v.  Hopton, 
6  Vesey,  51. 

The  Lord  Chancellor.  I  do  not  recollect  any  instance  of  this  sort.  The 
defendant  denies  that  the  plaintiffs  are  devisees.  It  is  not  waste,  but 
trespass  upon  their  own  showing.  There  was  no  instance  of  an  injunc- 
tion in  trespass  till  the  case  before  Lord  Thurlow  upon  a  mine;  to  which 

acts,  from  time  to  time  merely,  the  subject  of  an  action,  and  not  bringing 
along  with  it  irreparable  mischief,  Lord  Hardwicke  thought,  it  was  granted 
only  as  following  the  relief.  Lord  Thurlow  had  great  difficulty  as  to  trespass. 
I  have  a  note  of  a  remarkable  case,  in  which  the  name  of  one  of  the  parties 
was  Flamang.  There  was  a  demise  of  close  A.  to  tenant  for  life ;  the  lessor 
being  landlord  of  an  adjoining  close  B.  The  tenant  dug  a  mine  in  the  former 
close.  That  was  waste  from  the  privity.  But  when  we  asked  an  injunction 
against  his  digging  in  the  other  close,  though  a  continuation  of  the  working 
in  the  former  close,  Lord  Thurlow  hesitated  much ;  but  did  at  last  grant  the 
injunction:  first  from  the  irieparable  ruin  of  the  property,  as  a  mine;  secondly 
as  it  was  a  species  of  trade;  and  thirdly,  upon  the  principle  of  this  Court 
enjoining  in  matter  of  trespass,  where  irreparable  damage  is  the  consequence." 


C84  COUKTHOPE  v.  MAPPLESDEN  [part  ii. 

I  liave  alluded;  which,  though  trespass,  was  very  near  waste.  In  that 
case,  the  first  instance  of  granting  an  injunction  in  trespass,  there  was  no 
dispute  whatsoever  ahout  the  right.  Here  the  right  is  disputed.  It  was 
always  surprising  to  me  that  the  jurisdiction  by  injunction  was  taken  so 
freely  in  waste,  and  not  in  trespass;  for  there  is  a  writ  at  common  law 
after  action  to  restrain  waste.  But  a  trespass  after  one  action  may  be  re- 
peated. I  remember,  when,  if  a  plaintiff  stated  that  the  defendant 
claimed  by  an  adverse  title,  he  stated  himself  out  of  court. 


COIJRTHOPE  V.  MAPPLESDEN. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1804. 

[10  Vesey  290.] 

A  motion  was  made  by  a  landlord  for  an  injunction  to  restrain  cutting 
and  moving  timber,  and  committing  any  other  waste :  the  plaintiff  charg- 
ing collusion  by  the  defendant  with  the  tenant. 

Mr.  Hollist  and  Mr.  Leach  in  support  of  the  motion. 

Though  in  Mogg  v.  Mogg,  2  Dick.  670,  an  injunction  under  these  cir- 
cumstances was  refused,  Lord  Thurlow  very  soon  afterwards,  in  Hamil- 
ton V.  Worsefold,  5  Ante,  altered  his  opinion  and  granted  his  injunc- 
tion. There  was  in  that  case  no  privity  of  estate  between  Worsefold. 
and  the  plaintiff.  The  old  rule  was,  that  if  a  tenant  suffers  a  third 
person  to  come  upon  the  land  and  cut  timber,  he  is  himself  guilty  of 
waste.  This  case  is  the  same:  a  person  without  right,  after  the  ten- 
ant has  attorned,  coming  upon  the  land  without  the  privity  of  the  land- 
lord, and  cutting  timber:  it  is  waste  in  both.  The  utmost  the  plaintiff 
could  do  is  to  go  and  carry  away  the  timber;  suffering  all  the  disad- 
vantage of  having  it  cut  at  an  improper  time.  He  cannot  go  upon  the 
land  to  stop  another  person  cutting  timber. 

The  Lord  Chancellor.  I  have  no  difficulty  in  granting  the  injunction 
in  this  case ;  but  I  will  not  be  bound  as  to  what  is  to  be  done  upon  a  mere 
trespass;  though  it  is  strange  that  there  cannot  be  an  injunction  in  that 
case  to  prevent  irrejiarable  mischief:  the  rather,  as  there  is  a  writ  at  com- 
mon law  to  prevent  the  farther  commission  of  waste  during  the  trial; 
whereas,  if  the  court  will  not  interfere  against  a  trespasser,  he  may  go 
on  by  repeated  acts  of  damage,  perfectly  irreparable.  But  the  ground  in 
this  case  is,  that  the  trespass  partakes  of  the  nature  of  waste  more  than 
in  general  cases:  the  tenant  colluding;  and  if  the  tenant's  act  is  waste, 
the  act  of  the  other  must  have  so  much  of  the  quality  of  the  tenant's 
act  as  to  make  it  the  object  of  an  injunction. 


CHAP.  I.]  THOMAS  V.  OAKLEY  685 

CROCKFORD  v.  ALEXANDER. 

In  Chancery,  before  Lord  Chancellor  Eldon,  1308. 

[15    Vesey   138.] 

The  plaintiff  having  contracted  to  sell  an  estate  to  the  defendant,  the 
latter  obtained  possession  from  the  tenant,  and  began  to  cut  timber;  upon 
which  the  bill  was  filed,  and  a  motion  made  for  an  injunction. 

Mr.  Cullen,  in  support  of  the  motion,  observed  that  this  was  a  case 
of  trespass. 

The  Lord  Chancellor.  Althoiig-h  at  law  this  defendant  is  a  trespasser, 
he  is  in  equity  by  the  effect  of  the  contract  the  owner  of  this  estate; 
having  taken  possession  under  the  contract;  and  the  vendor  is  in  the 
situation  of  an  equitable  mortgagee.  This  court  has  occasionally  granted 
an  injunction  in  cases  of  trespass  as  well  as  waste;  and,  having  thought 
much  upon  this  subject,  I  will  grant  this  protection  against  cutting  tim- 
ber, until  the  power  of  the  court  to  grant  the  injunction  against  trespass 
shall  be  fully  discussed.  Lord  Thurlow  refused  the  injunction  in  this, 
case.  A  man,  possessed  of  two  fields,  demised  one,  with  the  mines  under 
it :  the  lessee  found  his  way,  working  under  ground,  to  the  mines  under 
the  other  field,  which  was  not  demised.  Lord  Thurlow  held  that  to  be  tres- 
pass, not  waste;  and  did  not  grant  the  injunction.  There  are,  however, 
several  cases,  furnishing  principles  of  analogy.  In  Lord  Byron's  Case  it 
was  destruction,  not  waste :  there  being  no  pi'ivity  between  Lord  Byron 
and  the  persons  who  had  the  mills.  There  is  no  difference  between  de- 
struction and  trespass  where  there  is  no  privity  of  estate;  and  at  law  the 
writ  of  estrepement  may  be  had  to  prevent  repetition  of  waste.  I  have 
therefore  ventured  to  grant  an  injunction  in  trespass;  and  this  defend- 
ant will  find  it  very  difficult  to  maintain,  that  he  can  use  his  legal 
character  of  trespasser,  in  order  to  enable  himself  to  commit  what  is 
absolute  destruction. 

The  order  for  the  injunction  was  made. 


THOMAS  V.  OAKLEY. 
In  Chancery,  before  Lord  Chancellor  Eldon,  1811. 

[18  Vesey  184.] 

The  case,  stated  by  the  bill,  was,  that  the  plaintiff  was  seised  in  fee- 
simple  of  an  estate,  in  which  there  was  a  stone  quarry;  and  the  defendant, 
having  a  contiguous  estate,  with  a  right  to  enter  the  plaintiff's  quarry 
and  take  stone  for  b\iilding  and  other  purposes,  confined  to  a  part  of  his 


686  THOMAS  v.  OAKLEY  [part  ir. 

estate  called  Newton  Farm,  had  taken  stone  to  a  considerable  amount  for 
the  purpose  of  using  it  upon  the  other  parts  of  his  estate ;  praying  an 
injunction  and  account. 

To  this  bill  the  defendant  demurred. 

Mr.  Hart  and  Mr.  Home,  in  support  of  the  demurrer,  relied  on  the 
distinction  between  waste  and  trespass;  this  being  a  mere  trespass;  and 
the  account  too  trifling  to  change  the  jurisdiction. 

Mr.  Benyon  for  the  plaintiff. 

The  course  of  modern  authority  is  to  afford  assistance  in  these  cases, 
of  coal  mines,  timber,  etc.,  to  prevent  irremediable  mischief:  an  injury 
which  damages  could  not  compensate.  In  Mitchell  v.  Dors,  6  Vesey,  147, 
and  many  other  cases,  your  Lordship,  following  Lord  Thurlow,  gave 
relief;  giving  the  injunction,  where  an  action  of  trespass  might  be 
maintained;  and  the  account  follows  the  injunction;  to  prevent  multi- 
plicity of  suits. 

The  Lord  Chancellor.  The  case  has  this  specialty:  the  bill  admits  the 
defendant's  right  of  entry  into  this  quarry,  and  of  taking  stones  for  all 
the  purposes  of  Newton  Farm ;  though,  if  he  takes  for  any  other  purpose, 
undoubtedly  an  action  would  lie :  but  is  there  any  distinction  between 
this  case  and  that  of  a  coal  mine?  Is  not  this  taking  away  the  very 
substance  of  the  estate  just  as  much  as  in  the  case  of  a  coal  mine?  After 
the  decisions  that  have  taken  place,  this  demurrer  cannot  be  maintained. 
The  plaintiff  represents  himself  to  be  seised  as  tenant  in  fee  of  an  estate,^ 
in  which  there  is  a  stone  quarry,  that  is  parcel  of  the  estate.  He  then 
states,  which  upon  this  occasion  I  must  take  to  be  true,  that  the  defen- 
dant, having  an  estate  in  his  neighborhood,  consisting  of  Newton  Farm, 
among  other  lands,  as  owner  of  that  farm  has  a  right  to  enter  into  the 
quarry  for  the  purpose  of  taking  stone,  as  far  as  he  has  occasion  for 
building  and  other  purposes  upon  that  farm :  but  the  plaintiff  represents, 
that  the  defendant  has  taken  stone,  for  the  purpose  of  application,  not 
upon  Newton  Farm  only,  but  also  upon  his  other  estates,  and  to  a  very 
considerable  amount.  That  is  trespass  beyond  all  doubt,  and  not  waste; 
as  there  is  no  such  privity  between  the  parties  as  would  make  it  waste. 
His  entry  for  the  purpose  of  taking  stone  with  reference  to  Newton  Farm 
is  lawful :  but,  if  under  color  of  that  right  he  takes  stone  for  the  enjoy- 
ment, not  of  his  farm  only,  but  his  other  estates,  his  entry  to  that  extent 
is  unlawful,  and  his  act  a  trespass;  and,  if  it  is  settled,  that  the  court 
will  interfere  by  way  of  injunction  and  account,  this  demurrer  cannot 
Ijrevail. 

The  distinction,  long  ago  established,  was,  that,  if  a  person,  still  living, 
committed  a  trespass  by  cutting  timber,  or  taking  lead  ore,  or  coal,  this 
court  would  not  interfere;  but  gave  the  discovery;  and  then  an  action 
might  be  brought  for  the  value  discovered :  but,  the  trespass  dying  with 
the  person,  if  he  died,  the  court  said,  this  being  property,  there  must  be- 
an account  of  the  value;  though  the  law  gave  no  remedy.  In  that  in- 
stance therefore  the  account  was  given,  where  an  injunction  was  not 


CHAP.  I.]  SHUBRICK  V.  YUERARD  687 

wanted.  Throughout  Lord  IIardwicke's  time  and  down  to  that  of  Lord 
Thurlow,  the  distinction  between  waste  and  trespass  was  acknowledged : 
and  I  have  frequently  alluded  to  the  case,  upon  which  Lord  Thurlow 
first  hesitated :  a  person,  having  a  close  demised  to  him,  began  to  get  coal 
there;  but  continued  to  work  under  the  contiguous  close,  belonging  to 
another  person;  and  it  was  held  that  the  former,  as  waste  would  be 
restrained:  but  as  to  the  close,  which  was  not  demised  to  him,  it  was  a 
mere  trespass;  and  the  court  did  not  interfere:  but  I  take  it,  that  Lord 
Thurlow  changed  his  opinion  upon  that ;  holding,  that,  if  the  defendant 
was  taking  the  substance  of  the  inheritance,  the  liberty  of  bringing  an 
action  was  not  all  the  relief,  to  which  in  equity  he  was  entitled.  The 
interference  of  the  court  is  to  prevent  your  removing  that,  which  is  his 
estate.  Upon  that  principle  Lord  Thurlow  granted  the  injunction  as 
to  both.  That  has  since  been  repeatedly  followed;  and  whether  it  was 
trespass  under  the  color  of  another's  right  actually  existing,  or  not. 

If  this  protection  would  be  granted  in  the  case  of  timber,  coals,  or  lead- 
ore,  why  is  it  not  equally  to  be  applied  to  a  quarry?  The  comparative 
value  cannot  be  considered.  The  present  established  course  is  to  sustain 
a  bill  for  the  purpose  of  injunction,  connecting  it  with  the  account  in 
both  cases;  and  not  to  put  the  plaintiff  to  come  here  for  an  injunction, 
and  to  go  to  law  for  damages. 

The  demurrer  was  overruled. 


SHUBRICK  V.  YUERARD. 
In  the  Court  of  Chancery  of  South  Carolina,  1808.* 
[2  Desaussure  616.] 

The  bill  in  this  case  was  filed  by  the  complainant,  who  claimed  a  cer- 
tain tract  of  land,  to  obtain  an  injunction  against  the  defendant  to  re- 
strain him  from  cutting  timber,  and  committing  waste  on  such  land,  then 
in  the  possession  of  the  defendant,  who  claimed  the  same  by  adverse  title, 
and  was  in  the  cultivation  of  part  thereof. 

Chancellor  Rutledge  granted  the  injunction  in  this  case,  restraining 
the  defendant  from  cutting  timber  or  committing  other  waste  till  the 
trial  and  determination  at  law  of  the  rights  of  the  parties.  No  note  has 
been  preserved  of  the  grounds  of  his  decision.  The  defendant  afterwards 
filed  a  demurrer,  but  it  was  never  argued,  the  parties  having  compro- 
mised. 

'  This  case  is  reported  with  cases  decided  in  1808,  but  the  reporter  states 
that  "it  was  decided  at  a  somewhat  earlier  period."  In  a  learned  and  extended 
note  to  this  case,  the  Reporter  enumerates  and  analyzes  the  cases  as  well  as 
others  previously  prese'nted  in  this  section. 


688  STEVENS  v.  BEEKMAN  and  others  [part  ii. 


STEVENS  V.  BEEKMAN  and  others. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor  Kent, 

1814. 

[1  Johnson's  Chancery  318.] 

Motion  for  an  injunction  on  a  bill,  stating  that  the  plaintiff,  on  the 
20th  of  March,  1806,  purchased  by  deed,  in  fee,  for  a  valuable  considera- 
tion, of  Jacob  Glen,  certain  lands  therein  described,  in  the  county  of 
Saratoga,  and  adjoining  Glens  Falls.  That  before  the  purchase,  the 
plaintiff,  for  twenty  years  and  upwards,  had  been  in  the  quiet  possession 
of  the  greater  part  of  the  premises,  as  tenant  to  Glen,  and  of  the  residue, 
for  about  three  or  four  years.  That  Glen  had  good  right  and  title  to  sell. 
That  the  plaintiff  had  continued,  and  still  was  in  possession,  as  owner. 
That  about  three  or  four  years  ago,  the  defendant  (Beekman)  brought 
an  action  of  ejectment  against  the  plaintiff,  for  the  south  or  west  part 
of  the  premises,  and  which  suit  had  never  been  brought  to  trial.  That 
Beekman  had  no  title.  That  the  other  two  defendants,  I.  and  G.  Lum- 
nendall,  deriving  or  pretending  to  derive,  a  title  under  Beekman,  had 
entered  on  the  premises,  and  cut  down  timber,  and  taken  it  away,  without 
permission ;  and  that  the  part  of  the  premises  on  which  such  waste  was 
committed  was  principally,  if  not  exclusively,  valuable  on  account  of  the 
timber.  That  the  two  other  defendants  were  still  continuing  to  commit 
waste  on  the  premises,  and  the  plaintiff  was  apprehensive  that  the  defen- 
dants would  continue  to  do  so,  unless  restrained  by  this  court.  The 
plaintiff,  therefore,  prayed  for  an  injunction  against  a  repetition  of  the 
trespass,  and  that  the  defendants  may  account  for  the  timber  already  cut. 

The  bill  was  sworn  to,  and  with  an  accompanying  affidavit,  that  the 
two  last  defendants  were  poor. 

The  Chancellor  [Kent.]  This  is  a  case  of  an  ordinary  trespass  upon 
land,  and  cutting  down  the  timber.  The  plaintiff  is  in  possession,  and 
has  adequate  and  complete  remedy  at  law.  This  is  not  a  case  of  the 
usual  application  of  jurisdiction  by  injunction ;  and  if  the  precedent 
were  once  set,  it  would  lead  to  a  revolution  in  practice,  for  trespasses  of 
this  kind  are  daily  and  hourly  occurring. 

T  doubt,  exceedingly,  whether  this  extension  of  the  ordinary  jurisdic- 
tion of  the  court  would  be  productive  of  public  convenience.  Such  cases 
are  generally  of  local  cognizance ;  and  drawing  them  into  this  court  would 
be  very  expensive,  and  otherwise  inconvenient.  Lord  Eldon  said,  that 
there  was  no  instance  of  an  injunction  in  trespass,  until  a  case  before 
Lord  Th(;rlow,  relative  to  a  mine,  and  which  was  a  case  approaching 
very  nearly  to  waste,  and  where  there  was  no  dispute  about  the  right. 
Lord  TiHJRLOw  had  great  difficulty  as  to  injunctions  for  trespass;  and 
though  Lord  Eldon  thought  it  surjjrising  that  the  jurisdiction  by  injunc- 


CHAP.  I.]  LIVINGSTON  v.  LIVINGSTON  689 

tion  was  taken  so  freely  in  waste,  and  not  in  trespass,  yet  he  proceeded 
with  the  utmost  caution  and  diifidence,  and  only  allowed  the  writ  in 
solitary  cases,  of  a  special  nature,  and  where  irreparable  damage  might 
be  the  consequence,  if  the  act  continued.  It  has  also  been  allowed  in 
cases  where  the  trespass  had  grown  into  a  nuisance,  or  where  the  principle 
of  multiplicity  of  suits  among  numerous  claimants  was  applicable. 
There  is  the  less  necessity  for  the  interference  of  this  court,  since  the 
statute  makes  the  cutting  down  timber  a  misdemeanor  punishable  by 
fine  and  imprisonment,  and  also  gives  the  party  injured  treble  damages. 
There  is  nothing  in  this  case  so  special  and  peculiar  as  to  call  for  this 
particular  relief,  and  especially  when  I  am  not  justified  by  any  estab- 
lished practice  and  precedent. 
Motion  denied. 


LIVINGSTON  V.  LIVINGSTON. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor  Kent, 

1822. 

[6   Johnson's   Chancery  497.] 

The  bill  stated,  that  the  plaintiff  was  seised  and  possessed,  by  him- 
self and  his  tenants,  of  a  tract  of  land  in  the  manor  of  Livingston, 
being  part  of  great  lot  No.  4,  in  the  town  of  Livingston,  and  lying  to 
the  north  and  west  of  Kuleff  Janse's  Kill.  That  he  derived  title  by 
the  will  of  his  father;  which  he  set  forth,  and  the  title,  as  far  back  as 
1728.  That  the  defendant  has,  in  his  own  right,  and  in  right  of  his  wife, 
a  number  of  tenants,  in  the  town  of  Clermont;  and  they,  by  authority 
derived  from  or  under  him,  had,  shortly  before  filing  the  bill,  entered 
upon  the  land  of  the  plaintiff,  and  cut  wood  and  timber;  and  the  de- 
fendant declared,  and  directed  his  tenants  to  declare,  that  he  and  they 
had  right  so  to  do,  for  the  use  of  their  houses  and  upon  their  farms 
in  Clermont.  That  the  plaintiff's  father  and  grandfather  always  held 
and  enjoyed  the  said  manor  as  an  absolute  and  unencumbered  estate, 
in  fee,  saving  only  the  rights  of  their  own  tenants,  holding  under  them; 
and  no  right  to  cut  wood  there,  by  any  person  residing  in  Clermont  had 
been  assented  to  or  exercised.  That  in  1812,  Elias  Hicks,  who  resided 
in  Clermont,  as  tenant  of  R.  R.  Livingston,  father  of  the  wife  of  the 
defendant,  and  under  whom  the  defendant  claims,  cut  wood  on  lot 
No.  4,  and  in  that  part  now  possessed  by  the  plaintiff,  and  the  father 
of  the  plaintiff  sued  him  in  trespass;  that  Hicks  undertook,  by  plea,  to 
justify,  as  tenant  of  R.  R.  L.,  who  claimed,  for  himself,  and  his  tenants 
of  Clermont,  a  right  to  cut  and  carry  away  wood  from  the  manor  of 
L.,  necessary  for  their  families  and  farms  in  Clermont;  and  the  agent 
of  R.  R.  L.  defended  the  suit.    That  the  cause  was  tried  at  the  Columbia 


690  LIVINGSTON  v.  LIVINGSTON  [part  iu 

circuit,  in  August,  1815 ;  and,  after  the  defendant  had  given  his  proof, 
the  Chief  Justice  ruled,  that  the  plaintiff  was  entitled  to  recover;  but 
a  verdict  was  taken  for  the  plaintiff,  at  his  request,  subject  to  the  opinion 
of  the  Supreme  Court,  upon  a  case  to  be  made,  and  the  damages  were 
assessed  at  100  dollars  for  the  wood  and  timber  cut.  A  similar  verdict, 
was  taken,  also,  in  another  similar  case,  against  Marks  Platner,  That 
the  case  against  Platner  was  argued  and  decided  in  the  Supreme  Court, 
in  favor  of  the  then  plaintiff,  (a  tenant  of  the  father  of  the  plaintiff,) 
and  the  defendant,  and  all  claiming  under  him,  have  desisted,  since,, 
from  trespasses  on  the  wood,  etc.,  until  the  death  of  the  father  of  the 
plaintiff,  in  November  last.  That  the  plaintiff  has  given  directions  to 
have  the  case  brought  to  argument  in  the  suit  against  Hicks ;  but  the 
trespasses,  in  the  meantime,  will  greatly  injure  the  value  of  the  plaintiff's 
estate.  Prayer  for  an  injunction  to  restrain  the  defendant  and  his 
tenants  from  cutting  timber,  etc. 

The  Chancellor  [Ke>:t].  This  is  not  the  case  of  a  stranger  entering 
upon  the  land,  as  a  trespasser,  without  pretence  of  right,  and  cutting 
down  timber.  In  such  a  case,  Lord  Thurlow,  in  Mogg  v.  Mogg,  Dickens, 
Hep.  670,  refused  to  interfere  by  injunction.  This  is  analogous  to  a  case 
before  Lord  Camden^  referred  to  by  the  counsel  in  Mogg  v.  Mogg,  and 
which  Lord  Thurlow  seemed  to  approve  of.  It  was,  where  a  defend- 
ant claimed  a  right  to  estovers,  and,  under  that  right,  cut  down  tim- 
ber. There  was  a  claim  of  right,  and,  until  it  was  determined,  it  was 
proper  to  stay  the  party  from  doing  an  act,  which,  if  it  turned  out  he 
had  no  right  to  do,  would  be  irreparable.  So,  also,  in  Hanson  v.  Gar- 
diner, 7  Vesey  305,  the  injunction  was  granted,  where  the  defendant, 
claimed  common  of  pasture  and  estovers ;  and,  in  that  case.  Lord  Eldon 
observed,  that  the  law,  as  to  injunctions,  had  changed  very  much,  and 
they  had  been  granted  much  more  liberally  than  formerly.  They  were 
granted  in  trespass,  when  the  mischief  would  be  irreparable,  and  to 
prevent  a  multiplicity  of  suits. 

In  Mitchell  v.  Dors,  C  Ves.  147,  the  defendant,  in  the  process  of  tak- 
ing coal,  had  begun  to  work  into  the  land  of  the  plaintiff,  and  though 
this  was  strictly  a  trespass,  yet  the  injunction  was  granted,  because  ir^ 
reparable  mischief  would  be  the  consequence  if  the  defendant  went  on. 
In  Hamilton  v.  Worsefold,  and  in  Courthope  v.  Mapplesden,  10  Vesey 
290,  and  note,  ibid.,  injunctions  were  granted  against  a  trespasser  enter- 
ing with  permission,  or  by  collusion  with  the  tenant  and  cutting  timber. 

Lord  Eldon  repeatedly  suggested  the  propriety  of  extending  the  in- 
junction to  trespasses,  as  well  as  waste,  and  on  the  ground  of  prevent- 
ing irreparable  mischief,  and  the  destruction  of  the  substance  of  the 
inheritance.  The  distinction  on  this  point,  between  waste  and  tres- 
pass,' which  was  carefully  kept  up  during  the  time  of  Lord  Hardwicke, 
was  shaken  by  Lord  TiiuRi,ow,  in  Flamang's  case,  respecting  a  mine,  and 
seems  to  be  almost  broken  down  and  disregarded  by  Lord  Eldon.  This 
protection  is  now  granted  in  the  case  of  timber,  coals,  lead  ore,  quarries,^ 


CHAP.  1.]  LIVINGSTON  v.  LIVINGSTON  691 

etc. ;  and  "the  present  established  course,"  as  he  observed  in  Thomas  v. 
Oakley,  18  Ves.  184,  "was  to  sustain  the  bill  for  the  purpose  of  injunc- 
tion, connecting  it  with  the  account,  in  both  cases,  and  not  to  put  the 
plaintiff  to  come  here  for  an  injunction,  and  to  go  to  law  for  damages." 

The  injunction  was  granted  in  Crockford  v.  Alexander,  15  Ves.  138, 
against  cutting  timber,  when  the  defendant  had  got  possession  under 
articles  for  a  purchase;  and  in  Tworl  v.  Tworl,  16  Ves.  128,  against  cut- 
ting timber  between  tenants  in  common;  and  in  Kender  v.  Jones,  17 
Ves.  110,  where  the  title  to  boundary  was  disputed ;  and  in  the  case  of 
Eai'l  Cowper  v.  Baker,  17  Ves.  128,  against  taking  stones  of  a  peculiar 
and  valuable  quality  at  the  bottom  of  the  sea,  within  the  limits  of  a 
manor,  and  in  Gray  v.  Duke  of  Northumberland,  17  Ves.  281,  against 
digging  coal  upon  the  estate  of  the  plaintiff;  and  in  Thomas  v.  Oakley, 
against  exceeding  a  limited  right  to  enter  and  take  stone  from 
a  quarry.  In  all  these  cases,  the  injury  was  considered  a  trespass,  and  in 
two  of  them  it  was  strictly  so ;  and  the  principle  of  the  jurisdiction  was 
to  preserve  the  estate  from  destruction.  But  I  can  safely  allow  the 
injunction  in  the  present  case,  without  going  to  the  extent  of  these  lat- 
ter cases,  or  following  the  habit,  as  Lord  Eldon  termed  it,  in  Field  v. 
Beaumont,  1  Swanston  208,  of  the  English  Chancery,  in  granting  in- 
junctions in  cases  of  trespass  as  well  as  of  waste.  Here  has  been  one 
action  of  law,  in  which  the  claim  of  the  defendant  to  estovers  in  the  lands 
of  the  plaintiff  has  received  a  decision  against  him,  and  there  is  another 
suit  at  law  still  depending,  in  which  the  same  question  arises.  It  is  just 
and  necessary  to  prevent  multiplicity  of  suits,  that  the  further  disturb- 
ance of  the  freehold  should  be  prevented,  until  the  right  is  settled ;  and 
the  case  decided  by  Lord  Camden  is  a  sufficient  authority  for  the  inter- 
position asked  for  in  this  case. 

The  recent  decision  by  the  Vice-Chancellor,  in  Garstin  v.  Asplin,  1 
Madd.  Ch.  Rep.  150,  shows,  that  it  is  not  the  general  rule,  that  an  injunc- 
tion will  lie  in  a  naked  case  of  trespass,  where  there  is  no  privity  of 
title,  and  where  there  is  a  legal  remedy  for  the  intrusion.  There  must 
be  something  particular  in  the  case,  so  as  to  bring  the  injury  under 
the  head  of  quieting  possession,  or  to  make  out  a  case  of  irreparable 
mischief,  or  where  the  value  of  the  inheritance  is  put  in  jeopardy. 

Injunction  granted.* 

•  In  N.  Y.  Printing  &  Dyeing  Establishment,  1828,  1  Paige,  97,  Chancellor 
Walworth  said: 

"The  case  of  Livingston  v.  Livingston,  and  the  several  cases  there  referred 
to,  settle  the  principle  that  an  injunction  will  lie  to  restrain  trespasses,  even 
where  there  is  a  legal  remedy  for  the  intrusion;  but  there  must  be  something 
particular  in  the  case,  to  sustain  the  jurisdiction  of  the  court  so  as  to  bring 
the  injury  under  the  head  of  quieting  the  possession,  or  to  make  out  a  case 
of  irreparable  mischief;  or  the  value  of  the  inheritance  must  be  put  in 
jeopardy  by  the  continuance  of  the  trespass." 


692  JEROME  v.  ROSS  [part  n. 


JEROME  V.  ROSS. 

In  the  Court  of  Chancery  of  New  York,  before  Chancellor  Kent, 

1823. 

[7  Johnson's  Chancery  315.] 

The  Chancellor  [Kent].  This  is  the  case  of  an  appeal  from  inter- 
locutory decree. 

The  order,  continuing  the  injunction,  overruled  the  two  grounds, 
taken  in  support  of  the  motion  for  dissolving  the  injunction,  and 
which  were, 

1.  The  want  of  equity  in  the  hill. 

2.  The  sufficiency  of  the  justification  set  up  in  the  answer. 

1.  I  have  not  been  able  to  satisfy  myself  that  the  bill  contains  suf- 
ficient equity  to  warrant  the  injunction.^ 

The  bill  contains  a  charge  of  trespass,  by  entering  upon  the  land 
of  the  plaintiff,  and  digging,  throwing  up,  and  carrying  away,  large 
parcels  of  stone,  from  a  ledge  of  stone  and  mass  of  rock  on  the  premises. 
Several  actions  have  been  commenced  in  a  court  of  record  to  recover 
damages  for  this  trespass;  but  it  is  not  stated  that  any  of  these  actions 
have  been  brought  to  trial.  One  action  has  likewise  been  instituted  be- 
fore a  justice  of  the  peace,  and  that  action  has  been  tried,  and  the  plain- 

'  Only  the  opinion  of  the  learned  Chancellor  is  given  on  the  first  point.  The 
injunction  was  dissolved. 

This  was  Chancellor  Kent's  last  case.  Two  days  later,  July  31,  1823,  the 
Chancellor  having  completed  his  sixtieth  year,  left  the  bench  in  accordance 
with  a  provision  of  a  foolish  law  limiting  the  tenure  of  judicial  office  to  the 
sixtieth  year.  Considering  the  delay  of  English  Chancery,  the  Reporter's  note 
will  have  a  double  and  peculiar  interest:  "This  day  the  Chancellor  terminated 
his  judicial  labours,  having  heard  and  decided  every  case  and  motion  brought 
before  him." 

It  is  not  too  much  to  say  that  these  various  cases  before  Chancellor  Kent, 
based  as  they  were  upon  enlightened  English  precedent,  established  the  law 
upon  a  firm,  intelligent  and  intelligible  basis  before  the  masterly  decision  of 
Vice-Chancellor  Kinuersley  in  Lowndes  v.  Bettle. 

In  Wood  V.  Braxton,  1892,  54  Fed.  1005,  1008,  Goff,  Circuit  Judge,  truly 
and   impressively   said : 

"The  judisdiction  of  courts  of  equity  by  way  of  injunction  to  restrain  waste, 
to  prevent  the  cutting  of  timber,  and  the  mining  of  minerals,  is  one  of  com- 
])aratively  recent  origin,  but  it  is  now  fully  recognized  and  well  established  in 
this  country  as  well  as  in  England.  A  leading  case,  in  which  the  question  of 
Mjuiiy  jurisdiction  in  such  controversies  was  fully  considered  and  previous 
authorities  discussed,  is  that  of  Jerome  v.  Ross,  7  Johns.  Ch.  315.  This  is  the 
last  decree  rendered  by  that  illustrious  Chancellor,  whose  able,  clear,  and  eru- 
dite opinions  not  only  charm,  but  instruct  and  convince  us — Kent — and  it  is 
replete  with  the  wisdom  of  the  English  and  American  decisions  on  that  ques- 


CHAP.  I.]  JEROME  V.  ROSS  693 

tiff  recovered  damages  to  the  amount  of  25  dollars.  The  plaintiff  has  his 
complete  and  perfect  remedy  at  law  for  the  trespass,  as  often  as  it  may 
be  repeated;  and  the  only  question  is,  whether  the  injury  be  so  ruinous 
and  irreparable  as  to  call  for  the  extraordinary  interposition  of  a  court  of 
equity.  The  bill  does  not  pretend  that  the  ledge  of  rock,  upon  which  the 
trespass  was  committed,  was  of  any  particular  use  or  value  to  the 
plaintiff,  or  that  he  ever  did  or  ever  intended  to  apply  it  to  any  valuable 
purpose.  The  plaintiff  speaks  of  the  injury  as  irreparable,  because  the 
loads  of  stone,  taken  from  the  mass  of  rock,  cannot  be*  replaced  or 
restored;  but  as  he  does  not  state  that  the  rock  was  of  any  use  to  him, 
as  proper  or  fit  for  building,  fencing,  etc.,  or  that  it  was  even  desirable 
as  an  object  of  ornament  or  taste,  there  was  no  need  of  having  the 
same  identical  fragments  of  stone  replaced,  and  the  injury  was  not,  in 
the  sense  of  the  law,  irreparable.  It  was  susceptible  of  a  perfect  pe- 
cuniary compensation.  The  case,  therefore,  seems  to  resolve  itself  into 
this  single  point,  whether  a  court  of  equity  ought  to  interpose,  by  in- 
junction, to  restrain  a  trespass,  when  the  injury  does  not  appear  to  be 
irremediable  and  destructive  to  the  estate,  and  when  the  ordinary  legal 
remedy  in  the  courts  of  law  can  afford  adequate  satisfaction. 

The  English  Court  of  Chancery  is  now  in  the  habit  of  granting  in- 
junctions in  trespass,  when  the  case  is  peculiar  and  special;  and  even 
this  practice  came  into  use  long  subsequent  to  the  date  of  our  revolution. 
As  late  as  1786,  Mogg  v.  Mogg,  Dickens,  670,  Lord  Thurlow  directed  a 
search  to  be  made,  to  see  if  ever  there  was  an  instance  of  an  injunction, 

tion.  See  also  Anderson  v.  Harvey,  10  Grat.  386;  McMillan  v.  Ferrell, 
7  W.  Va.  223;  Moore  v.  Ferrell,  1  Ga.  7;  Erhardt  v.  Boaro,  113  U.  S.  537, 
5  Sup.  Ct.  Rep.  565. 

"If  the  nature  of  the  inquiry  complained  of  goes  to  the  substance  of  the 
estate,  thereby  producing  irreparable  mischief,  equity  will  interfere  in  limine, 
and  not  require  the  party  to  resort  to  an  action  at  law,  and  this  independent 
of  the  question  of  the  insolvency  of  the  defendant.  The  chief  value  of  the  land 
in  the  bill  mentioned  is  charged  to  be  in  its  timber,  and  this  the  defendants, 
it  is  conceded,  have  made  extensive  arrangements  to  remove,  having  expended 
many  thousands  of  dollars  for  that  purpose.  This  removal  goes  to  the  very 
substance  of  the  inheritance,  to  the  destruction  of  that  which  is  the  main 
element  of  value  to  it.  The  fact  that  the  value  of  timber  can  be  estimated, 
that  it  can  be  determined  by  the  thousand  feet,  or  by  the  car  load,  does  not 
deprive  a  court  of  equity  of  the  right  to  interfere  by  way  of  injunction,  in 
cases  where  it  is  being  cut  and  removed  or  destroyed,  and  where  the  owner- 
ship is  in  controversy.  The  products  of  mines  and  forests  have  a  value  that 
can  generally  be  fixed,  yet  it  was  in  prevention  of  trespasses  to  property  of 
that  character  that  the  jurisdiction  in  question  had  its  origin,  and  is  now 
most  frequently  exercised.  While  it  is  true  that,  when  this  jurisdiction  for 
equity  was  first  claimed,  'Lord  Tiiurlow  hesitated'  and  'Lord  Eldon  doubted,' 
it  is  now  well  determined — the  decisions  coming  from  courts  of  such  character 
as  to  command  our  respect  and  of  such  grade  as  to  compel  our  approval — that 
the  jurisdiction  not  c^nly  exists,  but  that  it  is  absolutely  essential  for  the 
preservation  of  right  and  the  suppression  of  wrong." 


694  JEROME  v.  ROSS  [part  ii. 

where  a  mere  trespasser  entered  upon  land  and  cut  timber;  and  as  no 
such  precedent  could  be  found,  he  denied  it  even  in  a  case  of  trespass 
in  cutting  down  timber.  But  since  that  time,  the  practice  has  been 
introduced  and  justly  and  reasonably  applied  to  special  cases,  where  irre- 
parable ruin  would  have  followed  the  refusal  to  enjoin  the  trespass.  It 
was  allowed  by  Lord  Thurlovv,  in  Fleming's  case,  cited  6  Vesey,  147, 
where  the  defendant  had  worked  from  his  own  land  into  the  coal  mine 
of  the  plaintiff;  and  that  case  was  followed  by  Lord  Eldon,  6  Vesey,  147; 
7  Ves.  307,  on  the  principle  that  irreparable  mischief  and  ruin  of  the 
property,  as  a  mine,  would  be  the  consequence,  if  the  party  was  not 
stopped.  On  the  same  ground,  the  injunction-  is  granted  against 
diverting  a  water-course  from  a  mill,  1  Bro.  588 ;  against  the  destruction 
of  timber,  10  Vesey,  290;  against  the  taking  of  stones  of  a  peculiar 
value,  17  Vesey,  128;  or  stones  from  a  quarry,  18  Vesey,  184. 
But  all  these  are  cases  of  great  and  irremediable  mischief,  which  damages 
could  not  compensate,  because  the  mischief  reaches  to  the  very  substance 
and  value  of  the  estate,  and  goes  to  the  destruction  of  it  in  the  character 
in  which  it  is  enjoyed.  The  present  case  is,  in  no  reasonable  sense,  analo- 
gous to  those  cases.  The  plaintiff  does  not  aver,  or  show,  that  the  "ledge 
of  stone  and  mass  of  rock,"  on  which  the  trespass  is  committed,  is  of 
any  essential  use,  or  that  he  does  or  can  apply  it  to  any  valuable  purpose. 
It  is  very  possible  that  this  "ledge  of  rock"  may  be  some  precipitous, 
naked,  barren  hill,  absolutely  worthless  for  any  other  purpose  than 
that  to  which  the  defendants  apply  it.  Is  the  case,  then,  to  be  com- 
pared to  that  of  a  lead  or  coal  mine,  or  a  quarry  of  marble,  or  a  fine  build- 
ing, or  precious  stone,  or  a  grove  of  timber,  or  a  mill  establishment,  which 
the  Court  of  Chancery  has  thought  proper  to  protect  from  trespass  and 
ruin,  by  the  strong  and  menacing  hand  of  an  injunction?  Certainly 
not;  and  if  the  plaintiff  is  entitled  to  an  injunction  in  this  case, 
I  do  not  see  why  every  man,  in  possession  of  land,  may  not  call  for 
an  injunction  to  protect  him  from  his  neighbor's  trespasses  in  every  pos- 
sible case. 

The  objection  to  the  injunction,  in  cases  of  private  trespass,  ex- 
cept under  very  special  circumstances  is,  that  it  would  be  productive  of 
public  inconvenience,  by  drawing  cases  of  ordinary  trespass  within 
the  cognizance  of  equity,  and  by  calling  forth,  upon  all  occasions,  its 
power  to  punish  by  attachment,  fine  and  imprisonment,  for  a  further 
commission  of  trespass,  instead  of  the  more  gentle  common  law  remedy 
by  action,  and  the  assessment  of  damages  by  a  jury.  In  ordinary  cases, 
this  latter  remedy  has  been  found  amply  sufficient  for  the  protection 
of  property;  and  I  do  not  think  it  advisable,  upon  any  principle  of  jus- 
tice or  policy,  to  introduce  the  chancery  remedy  as  its  substitute,  ex- 
cept in  strong  and  aggravated  instances  of  trespass,  which  go  to  the 
destruction  of  the  inheritance,  or  where  the  mischief  is  remediless. 
Tbis  was  tbc  opinion  and  doctrine  which  I  had  occasion  to  declare  in 
the  case   of   Stevens  v.   Beekman,   1   Johns.   Ch.   Rep.   318,   and   it  ap- 


CHAP.  I.]  JEROME  V.  ROSS  695 

pears  to  be  the  English  doctrine,  and  the  practice  of  this  court  has  been 
in  conformity  to  it.  I  do  not  know  a  case  in  which  an  injunction 
has  been  granted  to  restrain  a  trespasser,  merely  because  he  was  a 
trespasser,  without  showing  that  the  property  itself  was  of  peculiar 
value,  and  could  not  well  admit  of  due  recompense,  and  would  be  de- 
stroyed by  repeated  acts  of  trespass.  In  ordinary  cases,  the  damages 
to  be  assessed  by  a  jury  will  be  adequate  for  a  check  and  for  a  recom- 
pense. Every  man  is  undoubtedly  entitled  to  be  protected  in  the  pos- 
session and  enjoyment  of  his  property,  though  it  may  be  of  no  intrinsic 
value.  He  may  have  on  his  land  a  large  mound  of  useless  stone  or  sand, 
which  he  may  not  deem  worth  the  expense  of  inclosing,  and  yet  it  would 
be  a  trespass  for  any  person  to  remove  any  portion  of  the  stone  or  sand 
without  his  consent ;  and  he  would  be  entitled  to  his  action,  even  though 
the  damages  were  nominal.  But  would  it  be  proper  for  this  Court  to 
assume  cognizance  of  such  a  trespass,  and  lay  the  interdict  of  an  in- 
junction upon  it  ?    I  apprehend  not. 

The  bill,  to  which  I  am  still  confining  myself,  does  not,  except  in  a 
very  imperfect  manner,  disclose  the  pretences  or  claim  of  right  under 
which  the  trespass  has  been  committed.  It  only  states,  that  the  de- 
fendants are  engaged  in  building  a  dam  in  Hudson's  river,  near  the 
north  line  of  the  city  of  Troy,  and  that  the  materials  taken  from  the 
ledge  of  rock  are  applied  to  the  dam;  that  one  of  the  defendants  acts 
as  engineer  in  that  operation,  and  that  the  defendants  pretend  that  they 
are  acting  in  behalf  of  this  state,  and  by  authority  of  the  statutes 
relative  to  canals.  But  admitting  that  the  defendants  do  pretend  to  act 
by  public  authority  in  their  commission  of  the  trespass,  it  does  not  alter 
the  principle;  and  the  trespass  itself  must  be  of  the  character  I  have 
described,  before  a  court  of  equity  can  be  called  upon  to  interfere 
by  injunction.  All  the  cases  referred  to,  were  those  in  which  the 
trespass  went  to  the  destruction  of  the  property,  as  it  had  been  held 
and  enjoved.  In  the  case  of  Agar  v.  The  Regent's  Canal  Company, 
Cooper's  Eq.  Rep.  77,  the  defendants  were  empowered  by  a  private  act 
of  parliament  to  cut  a  canal;  the  line  of  the  canal  had  been  prescribed, 
and  they  departed  from  that  line,  and  were  carrying  the  canal  through 
a  garden  and  rickyard ;  and  Lord  Eldon  allowed  an  injunction.  So,  in 
the  case  of  Shand  v.  Henderson,  2  Dow,  519,  the  Aberdeen  Canal  Navi- 
gation Company  were  charged  with  having  taken  and  appropriated  lands 
to  their  use,  by  unwarrantably  deviating  from  the  line  particularly  pre- 
scribed by  statute,  and  an  injunction  to  restrain  the  Canal  Company 
within  their  limits  was  admitted  to  be  proper.  But  in  both  these  cases, 
the  companies  were  making  a  permanent  appropriation  f)f  the  land,  and 
destroying  the  inheritance;  and  upon  the  acknowledged  principle,  in  all 
the  cases,  it  was  necessary  to  restrain  them.  In  the  case,  also,  of  Hughes 
V.  The  Trustees  of  Merton  College,  1  Vesey,  188  and  Belt's  Supp.,  the 
commissioners  of  a  turnpike  company  entered,  took  possession  of,  and 
were  destroying,  by  digging  for  gravel,  large  garden   grounds  of   the 


G96  JEROME  v.  ROSS  [part  il 

plaintiff,  who  was  a  gardener  by  trade.  The  turnpike  act  had  specially 
excepted  gardens,  as  well  as  orchards,  planted  walks,  etc.;  and  Lord 
Hardwicke  thought  it  a  clear  case  of  trespass,  and  of  such  a  nature  that 
the  plaintiff  was  entitled  to  seek  his  remedy  by  injunction,  though  he 
had  his  remedy  at  law.  But  he  admitted,  that  if  there  had  been  any 
ground  for  doubt,  whether  or  not  the  commissioners  had  authority, 
he  would  not  have  interposed  until  the  doubt  had  been  removed,  and 
the  matter  finally  determined  at  law.  And  it  is  to  be  observed,  that 
here  was  the  destruction  of  what  a  man  was  using  as  his  trade  or  liveli- 
hood. 

Several  cases  have  occurred  in  this  court,  in  which  public  trustees  have 
been  restrained  by  injunction  from  acts  of  trespass;  but  the  acts  were 
such  as  went  to  destroy  the  enjoyment  of  valuable  property  and 
privileges. 

Thus,  in  the  case  of  Gardner  v.  The  Trustees  of  Newburgh,  2  Johns. 
Ch.  Rep.  162,  the  trustees  were  going  to  divert  a  stream  of  water 
that  had  flowed  immemorially,  and  had  supplied  the  brickyard,  the  dis- 
tillery, and  mill  erections  of  the  plaintiff;  and  the  case  not  being  deemed 
within  the  provisions  of  the  act  in  favor  of  those  trustees,  an  injunction 
was  granted.  Afterwards,  in  Belknap  v.  Belknap,  2  Johns  Ch.  Rep. 
463,  an  injunction  was  allowed  upon  the  same  principle,  of  preventing  a 
great  and  irreparable  mischief.  In  that  case,  inspectors  under  an  act  of 
the  legislature  for  draining  certain  swamps  and  bog  meadows,  for  the 
benefit  of  some  individuals,  undertook  to  lower  a  large  pond  of  400 
acres,  by  cutting  down  the  outlet  which  would  destroy  the  value  of 
the  pond  and  outlet  as  a  source  of  water  for  the  use  of  mills 
established  on  the  outlet.  It  was  considered  to  be  an  interference 
not  warranted  by  the  statute,  and  to  be  a  great  and  special  trespass, 
leading  to  lasting  mischief,  and  the  destruction  of  the  estate.  It  was 
further  observed,  that  it  was  not  a  case  which  concerned  the  public,  but 
one  of  mere  private  convenience  and  profit,  and  the  act  ought  to  be 
strictly  construed. 

These  cases  all  show,  that,  in  respect  to  acts  of  trespass  committed 
upon  land,  even  by  persons  in  a  public  trust,  under  color  of  law,  the  Court 
has  not  interfered  by  injunction,  unless  where  the  trespass  was  per- 
manent, as  well  as  grievous,  or  went  to  destroy  the  value  of  the  property 
to  the  owner.  It  is  not  sufficient  that  the  act  be  simply,  per  se,  a  tres- 
pass; but  it  must  be  a  case  of  mischief  and  of  irreparable  ruin  to  the 
property,  in  the  character  in  which  it  has  been  enjoyed.  In  all  other 
cases,  the  common  law  remedy  is  deemed  to  be  adequate,  and  perfectly 
competent  to  give  compensation,  as  well  as  to  deter  and  prevent  the 
rejoetition  of  the  trespass,  by  the  exemplary  damages  which  it  will  in- 
flict. 

A  court  of  equity  will  sometimes  interfere  to  prevent  a  multiplicity 
of  suits,  by  a  bill  of  peace.  The  principle  is  stated  in  Lord  Tenham  v. 
Herbert,  2  Atk.  483,  and  in  Eldridge  v.  Hill  &  Murray,  2  Johns.  Ch. 


CHAP.  I.]  LOWNDES  V.  BETTLE  697 

Rep.  281.  But  that  is  only  in  cases  where  the  right  is  controverted  by 
numerous  persons,  each  standing  on  his  own  pretensions;  and  it  has  no 
application  to  the  case  of  one  or  more  persons  choosing  to  persevere  in 
acts  of  trespass,  in  despite  of  suits  and  recoveries  against  them.  A 
troublesome  man  may  vex  and  harrass  his  neighbor,  by  throwing  down 
his  fences,  and  turniiig  cattle  upon  his  grounds,  or  by  passing  over 
them,  or  otherwise  annoying  him;  but  it  is  to  be  presumed,  that  re- 
peated recoveries  for  damages,  with  the  punishment  of  costs,  and  such 
smart  money  as  a  jury  would  naturally  give,  would  soon  effectually  cor- 
rect any  such  disposition.  At  any  rate,  I  do  not  know  that  a  court  of 
equity  has  ever  interfered  merely  to  correct  such  a  practice ;  and  it  would 
certainly  require  very  strong  evidence  of  the  inefficacy  of  the  ordinary 
legal  remedies  for  compensation,  as  well  as  for  correction,  before  this 
Court  would  venture  to  assume  a  jurisdiction  hitherto  unknown. 

For  these  reasons,  I  am  of  opinion,  that  the  bill  itself  does  not  con- 
tain matter  sufficient  to  warrant  or  sustain  the  injunction;  and  that  the 
plaintiff  ought  to  have  been  left  to  his  remedy  at  law. 


LOWNDES  V.  BETTLE. 

In  Chancery,  bkfore  Sir  R.  T.  Kindersley,  V.  C,  1864. 

[33  Law  Journal,  Chancery,  451.'] 

A  testator  in  1768  devised  his  estate  to  his  heir-at-law,  but  if  no  heir- 
at-law  could  be  found,  he  declared  that  William  Lowndes  should  be  his 
heir.  The  testator  died  in  1772;  and  in  1773  William  Lowndes  filed  a 
bill  to  have  his  rights  so  ascertained.  No  heir-at-law  could  be  found,  and 
in  1783  a  decree  was  made  establishing  the  will,  and  declaring  that  the 
estate  was  to  be  considered  as  belonging  to  William  Lowndes,  and  that 
he  was  to  be  put  in  possession.  The  estate  continued  in  his  family  ever 
since,  and  the  plaintiff  was  one  of  his  descendants,  and  the  present  owner. 
The  defendant  claimed  to  be  heir-at-law  of  the  testator,  and  in  Septem- 
ber, 1861,  and  since,  had  sent  notices  to  the  plaintiff  threatening  to  come 
on  the  estate,  and  to  cut  trees  and  turf,  in  order,  as  he  said,  to  keep  up 
his  rights,  and  to  bar  the  Statute  of  Limitations. 

On  a  motion  for  an  interim  injunction  the  defendant  did  not  appear, 
and  the  injunction  was  granted ;  the  case  now  came  on  to  have  the  in- 
junction made  perpetual. 

Kindersley,  V.C.  (Jan.  23),  after  remarking  on  the  threats  of  litiga- 

'The  case  is  even  more  elaborately  reported  in  10  Jurist.  N.  S.  226.  A 
shorter,  and  in  some  respects,  more  satisfactory  report  of  the  case  is  to  be 
found  in  3  New  Reports,  409.  The  above  statement  of  the  facts  of  the  case 
is  taken  from  this  latter  report. 


698  LOWNDES  v.  SETTLE  [part  ii. 

tion,  and  the  vulgarity  of  their  terms,  said:  Of  course,  the  defendant 
has  a  right  to  assert  his  claim,  but  he  insists  on  his  right  to  do  so  by 
perpetually  doing  some  mischief  to  the  property,  evidently  supposing 
that  the  continuity  of  his  claim  bars  the  operation  of  the  statute  of 
limitations:  whether  feigned  or  real,  such  appears  to  be  his  impression; 
but  assuming  it  to  be  honest,  it  is  a  most  absurd  one.  The  defendant 
has  not  gone  into  any  evidence,  but  has  put  in  his  answer,  by  which  (in 
effect)  he  says,  "  There  being  an  injunction,  while  that  is  pending,  I  do 
not  mean  to  do  any  of  the  acts  complained  of."  About  the  facts,  which, 
at  the  hearing,  there  is  evidence  to  prove,  there  is,  indeed,  no  dispute. 

It  was  contended,  for  the  defendant,  that  assuming  the  truth  of  all 
those  facts,  the  court  could  not,  according  to  the  law  as  administered 
by  it,  interfere  to  restrain  such  acts  as  had  been  threatened;  and  several 
cases  were  cited,  although  only  some  of  the  many  which  exist  on  the 
subject.  I  have  thought  it  necessary  to  go  through  all  that  I  have  found 
(although  I  may  have  overlooked  some)  with  great  care,  because  they 
present  a  very  unsatisfactory  state  of  the  law,  and  there  is  great  difficulty 
in — I  may  even  say  an  impossibility  of — reconciling  them.  The  difficulty 
arises  (in  part,  no  doubt)  from  the  very  considerable  change  which  has 
taken  place  in  the  views  of  this  court  on  the  subject  of  granting  injunc- 
tions to  restrain  injury  to  property,  and  from  the  fact  that  the  court  will 
now  do  what  in  the  time  of  Lord  Thublow^  and  the  earlier  days  of  Lord 
Eldon,  it  would  not  have  done.  Lord  Eldon,  in  the  earlier  part  of  his 
time,  alluded  to  the  change  even  then  in  progress,  and  to  the  facility  in 
granting  injunctions  as  being  even  then  greater  than  in  former  times. 
The  other  judges  subsequently  advert  to  the  continuous  modifications, 
which  in  some  degree  also,  and  not  unnaturally,  accounts  for  the  conflict 
of  authorities  that  now  exists.  Another  cause  for  such  apparent  conflict 
is,  the  not  distinguishing  the  cases  under  certain  heads.  Now  the  proper 
mode  of  arranging  them,  I  think,  is  this, — at  least,  it  would  be  convenient 
thus  to  distinguish  them.  There  should  be  two  distinct  classes  of  cases : 
the  one  where  the  party  against  whom  the  application  for  the  injunction 
is  made  is  in  possession;  and  the  other,  where  the  plaintiff  is  in  possession 
and  is  asking  the  court  to  protect  the  estate.  A  priori,  it  is  obvious  that 
the  court  will  draw  a  clear  distinction  between  the  two  classes  of  cases. 
If  a  man  claims  to  be  owner  of  an  estate  of  which  he  either  is  in  pos- 
session, or  in  a  position  tantamount  to  that,  the  court  will  be  very  slow 
to  interfere  to  restrain  such  an  apparent  owner  from  doing  those  acts 
which  an  owner  so  situated  may  properly  do.  There  is  a  wide  difference 
between  such  a  case  and  that  of  a  person  claiming  to  be  owner  (whatever 
the  ground  of  his  claim),  not  taking  proceedings  at  law  to  recover,  but 
coming  on  the  owner's  estate,  and  doing  acts  injurious  to  it.  Therefore, 
it  appears  to  me  the  cases  are  to  be  arranged  imder  these  two  heads.  I 
hnvf  fiidcavorcd  to  do  that,  but  at  the  same  time  I  am  bound  to  say, 
tliiit  llic  !.'Tc;i1  (lifliculty  is  to  ascertain  which  party  is  in  possession;  not- 
withstanding that  these  arc  the  two  obvious  heads  (which  I  have  men-? 


CHAP.  I.]  LOWNDES  V.  BETTLE  699 

tioned),  and  having  so  divided  them,  the  next  thing  is  to  discover 
the  law  of  this  court  on  the  subject,  so  far  as  it  can  be  extracted  from 
the  authorities.  First,  then,  I  may  observe  that,  according  to  the  older 
cases,  a  wider  distinction  was  taken  between  what  was  then  called  waste 
and  trespass.  The  term  "  waste  "  was  used  in  the  sense  of  spoliation, 
though  with  a  technical  and  personal  application.  It  was  considered 
waste  when  the  plaintiff  and  defendant  had  a  privity  of  title,  such  as  that 
of  tenant  for  life  and  remainderman.  If  the  tenant  for  life  committed 
waste  the  remainderman  could  ask  for  an  injunction.  So  in  the  case 
of  landlord  and  tenant;  then  there  was  a  privity,  and  the  tenant  in  pos- 
session doing  acts  amounting  to  waste  the  landlord  could  have  got  an 
injunction.  It  was  by  reason  of  the  privity  of  title  that  the  law  called  it 
waste.  But  when  parties  did  not  claim  in  that  way,  but  by  an  adverse 
title,  any  act  done  by  the  one  or  by  the  other  of  them  was  then  called 
"  trespass."  That  act  might  have  been  one  of  destruction  or  spoliation. 
That  broad  distinction  runs  through  all  those  cases. 

I  am  not  now  going  to  consider  the  cases  of  waste,  but  only  those  of 
trespass,  as  distinguished  from  waste,  which,  in  strictness,  ought  to  be 
■called  spoliation,  and  not  waste.  Referring  then  only  to  cases  of  trespass, 
those  ought  to  be  ranged  again  under  two  heads,  viz.,  the  one  where  the 
defendant  is  in  possession  and  the  plaintiff  seeks  the  injunction,  and  the 
other  where  the  plaintiff  is  in  possession  and  asks  to  restrain  some  acts 
done  by  the  defendant  who  claims  adversely. 

With  respect  to  the  cases  where  the  defendant  is  in  possession,  of 
course,  one  can  hardly  conceive  a  jilaintiff  asking  for  an  injunction  un- 
less on  an  adverse  claim,  each  claiming  to  be  the  real  owner  of  the  estate. 
The  earliest  case  under  this  head  was  that  of  Hamilton  v.  Worsefold,  be- 
fore Lord  Thurlow,  which  is  to  be  found  in  a  note  of  Sir  Samuel 
Eomilly's,  10  Ves.  290.  That  was  a  case  in  which  it  could  hardly  be  con- 
sidered that  either  party  was  actually  in  possession :  perhaps  the  defen- 
dant was;  but  the  plaintiffs  had  never  received  rent,  and  Lord  Thurlow, 
after  some  hesitation,  granted  an  injunction,  restraining  not  only  the  de- 
fendant but  the  tenants  from  committing  waste.  Not  much  reliance  can 
be  placed  on  that  case,  because  there  may  have  been  collusion  between  the 
defendant  and  the  tenants,  and  it  may  be  that  the  defendant  was  not  in 
possession.  Lord  Thurlow  at  first  considered  it  as  trespass,  but  ulti- 
mately did  restrain  the  defendant  and  the  tenants,  Reg.  Book  (A)  1786, 
fol.  1. 

The  next  case  was  Pillsworth  v.  Hopton,  in  1801.  There,  the  defendant 
being  in  possession,  the  plaintiff  claimed  under  an  adverse  title,  and 
Lord  Eldon  refused  the  injunction. 

The  next  case  was  Crockford  v.  Alexander,  15  Ves.  138,  in  1808,-  a  case 
of  vendor  and  purchaser,  a  peculiar  case,  and  hardly  in  point.  The  plain- 
tiff there  had  contracted  to  sell  an  estate  to  the  defendant,  who  obtained 
possession,  and  began  to  cut  timber.  It  is  difficult,  therefore,  to  say 
there  might  have  bfeen  privity  there.    Lord  Eldon  says :    "  Although  at 


700  LOWNDES  v.  BETTLE  [part  ik 

law  the  defendant  is  a  trespasser,  he  is  in  equity,  by  the  effect  of  the  con- 
tract, the  owner  of  this  estate,  having  taken  possession  under  the  contract, 
and  the  vendor  is  in  the  situation  of  an  equitable  mortgagee.  This  court 
has  occasionally  granted  an  injunction  in  cases  of  trespass  as  well  as 
waste;  and  having  thought  much  upon  this  subject,  I  will  grant  the 
protection  against  cutting  timber,  until  the  power  of  the  court  to  grant 
the  injunction  against  trespass  shall  be  fully  discussed.  Lord  Thurlow 
refused  the  injunction  in  this  case:  a  man,  possessed  of  two  fields,  de- 
mised one  with  the  mines  under  it;  the  lessee  found  his  way,  working 
under  ground,  to  the  mines  under  the  other  field  which  was  not  demised. 
Lord  Thurlow  held  that  to  be  trespass,  not  waste,  and  did  not  grant 
the  injunction.  In  Lord  Byron's  case  it  was  destruction,  not  waste; 
there  being  no  privity  between  Lord  Byron  and  the  persons  who  had  the 
mill."  [I  shall  come  to  speak  of  Lord  Byron's  case  by  and  by;  Lord 
Eldon  goes  on:] — "There  is  no  difference  between  destruction  and  tres- 
pass where  there  is  no  privity  of  estate,  and  at  law  the  writ  of  estrepement 
may  be  had  to  prevent  repetition  of  waste."  The  report  adds,  that  the 
order  for  the  injunction  was  made.  It  is  somewhat  curious  that  Lord 
Eldon  in  other  cases  refers  to  that  before  Lord  Thurlow,  which  he  men- 
tioned in  Crockford  v.  Alexander,  but  does  so  as  if  he  sometimes  thought 
Lord  Thurlow  had  granted  the  injunction,  at  other  times  that  he  had 
refused  it.    Perhaps  he  did  refuse  it  at  first,  but  afterwards  granted  it. 

Jones  V.  Jones,  3  Mer.  161,  was  before  Sir  Willl\m  Grant.  In  that 
case  a  demurrer  was  filed  by  the  defendant  to  a  bill  by  an  heir-at-law, 
seeking  discovery  and  relief,  including  an  injunction  to  stay  waste  and 
destruction  pending  litigation.  Sir  William  Grant  allowed  the  de- 
murrer. In  that  case  it  was  held  that  an  heir-at-law  out  of  possession 
could  not  have  an  injunction  against  a  devisee  in  possession.  Sir 
William  Grant  says,  p.  173,  "  In  Smith  v.  Collyer,  an  injunction  was 
refused  when  applied  for  by  the  devisee  against  the  heir.  I  own  I  cannot 
see  a  very  good  reason  why  the  court,  which  interferes  for  the  protection 
of  personal  property  pending  a  suit  in  the  Ecclesiastical  Court,  should 
not  interpose  to  preserve  real  property  pending  a  suit  concerning  the 
validity  of  the  devise." 

The  next  case  is  that  of  Haigh  v.  Jaggar,  2  Collyer,  231.  There,  there 
was  a  house  and  land  with  coal  under  it.  It  did  not  appear  that  the 
plaintiffs  were  working,  but  the  defendants  were  working  out  of  their 
own  mines  into  those  of  the  plaintiffs.  The  latter  parties  brought  two 
actions,  and  the  Vice-Chancellor  (Knight  Bruce)  refused  the  injunction, 
expressing  dissatisfaction  with  the  strange  state  of  the  law. 

The  next  case  was  Talbot  v.  Hope  Scott.  The  court  there  stated  in 
effect  how  much  more  reluctant  it  is  to  entertain  a  suit  against  a  person 
in  possession  than  where  he  is  not.  The  question,  "  What  is  possession  ?  " 
is  evidently  of  groat  importance,  and  ought,  I  think,  to  be  made  the 
foundation  of  the  distribution  of  the  cases.  In  Neale  v.  Cripps  an  in- 
junction to  restrain  stripping  timber  off  an  estate  was  granted,  on  the 


CHAP.  I.]  LOWNDES  V.  BETTLE  701 

ground  that  the  acts  done  by  the  defendant  in  possession  tended  to  de- 
struction. There  were  two  other  cases,  before  Sir  Anthony  Hart,  in  Ire- 
land, Lord  Fingal  v.  Blake,  2  Molloy  542,  and  Lloyd  v.  Lord  Trimleston, 
Ibid.  81,  where  he  acted  upon  the  same  principles.  Those  are  all  the  cases 
in  which  the  plaintiff  was  out  of  possession,  and  the  result  of  them  is, 
that  the  court  will  refuse  to  interfere  except  where  there  is  fraud  or 
collusion,  or  where  the  acts  perpetrated  or  threatened  are  so  injurious  as 
to  tend  to  the  destruction  of  the  estate. 

T  now  come  to  the  cases  which  resemble  the  present  one,  where  the 
plaintiff  was  in  possession.  Those  again  are  to  be  divided  under  two 
subordinate  heads:  first,  where  the  defendant  claims  under  a  color  of 
right ;  and,  secondly,  where  he  is  an  absolute  stranger.  It  is  not  easy  to 
distinguish  these  cases ;  the  latter  may  be  cases  of  mere  spite :  still  there 
are  such.  In  Mogg  v.  Mogg,  2  Dickens  670,  the  injunction  was  refused 
on  the  ground  that  the  defendant  was  a  mere  trespasser,  and  an  action 
would  lie.  In  Mortimer  v.  Cottrell,  2  Cox  205,  the  injunction  to  stay 
waste  was  refused,  because  It  was  a  case  of  trespass  and  the  defendant 
might  at  law  have  been  turned  out  immediately.  Mitchell  v.  Dors,  6  Ves. 
147,  was  a  case  of  coal  mines  in  work;  there  it  was  held  to  be  trespass 
and  not  waste,  and  yet  an  injunction  was  granted,  because  being  coal 
mines  the  mischief  was  considered  irreparable. 

I  must  confess  I  cannot  see  why  the  mischief  done  in  the  case  of  coals 
is  more  irreparable  than  in  that  of  trees,  for  in  both  cases  the  injury, 
-whether  great  or  small,  may  be  made  the  subject  of  money  compensation. 
Courthope  v.  Mapplesden,  10  Ibid.  90,  was  a  case  relating  to  timber,  where 
the  injunction  was  granted,  the  fact  being  that  a  stranger  was  colluding 
with  the  tenants.  In  Earl  Cowper  v.  Baker,  17  Ibid.  128,  a  party  was 
restrained  from  taking  argillaceous  stones  under  the  sea.  That  case  was 
also  one  of  a  stranger.  In  it  the  mischief  was  considered  to  be  irrepa- 
rable. The  plaintiff  was  the  lord  of  the  manor,  and  his  rights  extended 
out  beyond  low-water  mark,  as  far  as  a  certain  small  barrel,  which  could 
be  seen  from  the  shore.  Lumps  of  clay  had  formed  within  the  limit,  and 
had  become  an  article  of  great  value  for  particular  manufactures.  Great 
profit  was  derived  from  the  sale  of  the  article,  and  Lord  Eldon  consid- 
ered the  damage  then  done  to  the  plaintiff  to  be  irreparable;  not  because 
it  was  a  destruction  simpliciter,  but  because  it  was  a  taking  away  of  the 
substance  of  the  inheritance.  Great  stress  was  laid  in  that  case  on  the 
character  of  the  mischief,  and  therefore  it  was  that  relief  was  given  in 
equity,  although  money  would  have  been  a  remuneration. 

I  now  come  to  the  cases  which  more  immediately  resemble  the  present 
one.  In  this  case  Mr.  Lowndes  and  his  ancestors  have  been  in  possession 
of  the  property  for  eighty  years,  and  the  defendant  claims  a  title,  not  as 
a  mere  stranger,  but  saying  that  he  is  the  heir  to  the  property,  and  that 
the  statute  is  no  bar,  because  he  has  removed  it  by  having  come,  and  by 
claiming  to  come  upon  the  estate,  and  by  having  cut  down  trees  as  he 
pleased  in  order  to  assert  his  right.    With  respect  to  cases  of  this  kind. 


Y02  LOWNDES  v.  SETTLE  [part  ir. 

I  may  observe  that  an  injunction  was  granted  in  all  cases  but  one;  but 
there  were  elements  in  some  of  the  eases  which  are  not  to  be  found  here. 
Those  cases  are  six  in  number:  one  was  before  Lord  Camden,  not 
reported  originally,  but  cited  in  Mogg  v.  Mogg.  No  name  is  there  given 
to  it ;  but  it  was  a  case  where  persons  were  cutting  timber  under  color  of 
a  right  to  estovers.  The  plaintiff,  who  was  the  lord  of  the  manor,  prob- 
ably alleged  the  cutting  to  be  beyond  what  was  wanted  for  estovers ;  at  all 
events,  the  injunction  seems  to  have  been  granted.  Lord  Thurlow,  how- 
ever, said  that  the  case  did  not  apply  to  Mogg  v.  Mogg;  for  in  that  case 
(as  referred  to  by  the  plaintiff's  counsel  in  Mogg  v.  Mogg),  there  ap- 
peared to  be  a  right  to  something  in  the  defendants,  though  perhaps  they 
carried  it  beyond  what  such  right  went  to ;  and  that  until  such  right  was 
determined,  it  was  very  proper  to  stay  them  from  doing  an  act  which,  if 
it  turned  out  that  they  had  no  right  to  do,  would  be  irreparable.  But  in 
Mogg  V.  Mogg  the  defendant  had  no  interest;  he  was  a  mere  trespasser. 
As  such,  an  action  of  trespass  would  lie  against  him;  and  therefore  Lord 
Thurlow  would  not  grant  the  motion.  It  was  not,  as  I  take  it,  because 
the  mischief  might  not  have  been  capable  of  compensation,  but  because  it 
was  a  destruction  of  part  of  the  inheritance.  In  the  case  of  Robinson  v. 
Lord  Byron,  1  Bro.  C.  C.  588,  the  plaintiff  was  in  possession  of  his  own 
water  mill.  The  defendant  was  the  owner  of  the  stream  above  the  mill, 
and  in  order  to  vex  the  plaintiff,  sometimes  kept  back  water  from  the  mill, 
and  sometimes  deluged  it  with  water.  In  that  case  it  was  difficult  to  say 
which  was  in  possession;  but  Lord  Byron  was  restrained  from  so  using 
the  stream  as  to  do  mischief  to  the  plaintiff's  mill.  In  Smith  v.  Collyer 
the  injunction  was  refused  by  Lord  Eldon,  because  it  was  a  case  of  tres- 
pass. There  infants  were  in  possession  by  their  guardian,  and  the  de- 
fendant claimed  as  heir.  Lord  Justice  Knight  Bruce,  in  Haigh  v.  Jag- 
gar,  hesitated  to  say  that  Lord  Eldon  was  wrong  in  Smith  v.  Collyer. 
He  was  not  satisfied  that  in  Ihe  same  circumstances  the  court  would  not 
now  grant  an  injunction;  and  he  referred  to  the  change  which  had  taken 
place  in  the  law  on  the  subject.  Grey  v.  The  Duke  of  Northumberland, 
13  Ves.  236,  was  a  case  of  copyhold ;  and  there  an  ex  parte  injunction  was. 
granted  to  restrain  the  opening  of  a  mine.  The  defendant  claimed  as 
lord  of  the  manor ;  and  Lord  Eldon  on  motion  to  dissolve  the  injunction, 
17  Ibid.  281,  said  he  would  do  so,  unless  some  means  of  producing  a 
speedy  trial  of  the  right  at  law  could  be  insured.  Kinder  v.  Jones  was 
also  a  case  of  the  lord  of  a  manor,  the  subject-matter  of  the  suit  being 
trees.  There  Sir  Wh.lia.m  Grant,  sitting  for  the  Lord  Chancellor,  granted 
the  injunction.  The  last  case  on  this  head  is  Thomas  v.  Oakley,  18 
Ibid.  184.  The  defendant  there  having  the  right,  as  an  easement,  of  tak- 
ing stone  from  the  plaintiff's  quarry  for  building  and  other  purposes  on 
a  c(!rtiiin  part  of  his  own  estate,  took  stone  for  the  like  purposes  on  other 
parts  of  his  estate.  The  plaintiff  filed  his  bill  for  an  injunction  and  an 
account.  The  defendant  demurred,  and  the  demurrer  was  overruled  on 
the  ground  Ibat  the  defendant  was  subtracting  from  the  inheritance.    In 


CHAP.  I.]  LOWNDES  V.  BETTLE  70a 

all  those  cases  (except  Smith  v.  Collyer),  where  the  plaintiff  was  in  pos- 
session and  the  motion  was  made  for  an  injunction  to  restrain  the  de- 
fendant, who  claimed  under  an  adverse  title,  the  injunction  was  granted. 
Many  other  cases  might  be  referred  to  containing  dicta  which  tend  to 
show  the  continually  increasing  feeling  and  opinion  among  the  learned 
judges,  of  the  impropriety  of  preserving  the  distinction  between  trespass 
and  waste,  and  the  injustice  of  refusing  to  interfere  in  all  cases  of  tres- 
pass. 

'  But  I  have  now  to  consider  what  the  court  is  to  do  in  this  case,  where 
the  plaintiff  is  in  possession,  as  it  seems  lawfully,  and  is  asking  for  an 
injunction  to  restrain  the  defendant  who  is  out  of  possession,  but  who 
claims  a  title  (however  incapable  it  may  be  of  being  supported)  as  heir-at- 
law  to  the  property.  He  has  also  given  notice  that  whenever  it  suits  his 
convenience  he  will  cut  down  trees,  cut  sods,  etc.,  and  he  has  reminded 
the  plaintiff  of  twelve  trees  cut  down  by  him  or  his  family  on  a  former 
occasion,  which  is  as  much  as  to  say  that  he  will  do  the  same  thing  again. 
If  a  person  desires  to  do  a  certain  act  for  the  purpose  of  asserting  a 
right,  or  keeping  alive  a  claim,  this  court  will  not  restrain  him  from 
doing  the  act  if  it  is  necessary  to  his  title,  and  for  his  benefit,  but  nothing 
^an  be  more  absurd  than  the  notions,  not  to  say  the  delusion  of  the  de- 
fendant; he  has  only  to  refer  to  any  lawyer,  who  would  say  to  him,  "  How 
can  you  do  any  good  by  cutting  down  trees  ? "  etc. ;  but  his  own  opinion 
was,  that  although  the  plaintiff  has  an  eighty  years'  title,  he  had  a  right 
to  the  property  as  heir.  Then,  again,  even  assuming  that  he  is  the  heir, 
and  means  to  show  his  title,  he  has  not  shown  it.  No  doubt,  under  the 
old  rule,  his  acts  would  have  been  tantamount  to  a  trespass.  He  might, 
as  it  is,  come  on  the  land  and  do  irremediable  damage,  incapable  of  being 
compensated  by  money.  He  might  injure  the  most  valuable  and  orna- 
mental trees,  the  cost  of  which  could  not  be  compensated  for  by  money. 
The  question,  then,  would  be,  whether  such  acts  were  against  his  con- 
science ?  That  would  be  the  test.  It  appears  to  me  that  the  case  comes 
tinder  the  head  of  "irremediable  waste,"  as  defined  by  Lord  Eldon,  that 
is,  a  destruction  of  the  substance  of  the  inheritance;  and  I  think  it 
comes  within  the  cases  in  which  the  plaintiff  being  in  possession  and  the 
defendant  not,  an  injunction  has  been  granted.  I  think,  therefore,  that 
"under  the  circumstances,  and  having  regard  to  what  appears  to  me  to 
he  the  constant  tendency  of  the  decisions  upon  the  subject,  viz.,  to  break 
•down  the  unreasonable  distinction  between  trespass  and  waste,  that  this 
■is  a  case  in  which  the  injunction  ought  to  be  granted. 

I  have  gone  into  this  case  at  great  length,  because  of  the  difiiculty  of 
finding  the  principle  upon  which  to  act ;  I  should  say,  however,  that  it  is 
this:  where  a  defendant  is  in  possession,  and  a  plaintiff  claiming  posses- 
sion seeks  to  restrain  him  from  committing  acts  similar  to  those  here 
complained  of,  the  court  will  not  interfere,  unless,  indeed  (as  in  Neale  v. 
Cripps),  the  acts  amount  to  such  flagrant  instances  of  spoliation  as  to 
justify  the  court  in  departing  from  that  general  principle.     Where  the 


704  ERHARDT  v.  BOARO  and  others  [part  ii. 

plaintiff  is  in  possession,  and  the  person  doing  the  acts  complained  of  is 
an  utter  stranger,  not  claiming  under  the  color  of  right,  then  the  ten- 
dency of  the  court  is  not  to  grant  an  injunction,  unless  there  are  special 
circumstances,  but  to  leave  the  plaintiff  to  his  remedy  at  law,  though 
"where  the  acts  tend  to  the  destruction  of  the  estate,  the  court  will  grant  it. 
But  where  the  person  in  possession  seeks  to  restrain  one  who  claims  by 
an  adverse  title,  the  tendency  of  the  court  will  be  to  grant  the  injunction, 
at  least  when  the  acts  done  either  do  or  may  tend  to  the  destruction  of  the 
estate.  I  am  of  opinion,  therefore.,  that  this  injunction  must  be  made 
I)erpetual. 


ERHARDT  v.  BOARO  and  others. 

In  the  Supreme  Court  of  the  United  States,  1885. 

[113  United  States  537.] 

The  facts  which  make  the  case  are  stated  in  the  opinion  of  the  court. 

Mr.  Elihu  Root  for  appellant. 

Mr.  T.  M.  Patterson  and  Mr.  C.  S.  Thomas  for  appellees  submitted  on 
their  brief. 

Mr.  Justice  Field  delivered  the  opinion  of  the  court. 

This  is  a  suit  in  equity  ancillary  to  the  action  for  the  possession  of 
the  mining  claim  just  decided.  It  is  brought  to  restrain  the  commission 
of  waste  by  the  defendants  pending  the  action.  The  bill  sets  forth  the 
discovery  by  one  Thomas  Carroll,  a  citizen  of  the  United  States,  while 
searching  on  behalf  of  himself  and  the  plaintiff,  also  a  citizen,  for  valu- 
able deposits  of  mineral  on  vacant  unoccupied  land  of  the  United  States, 
of  the  outcrop  of  a  vein  or  lode  of  quartz  and  other  rock  bearing  gold 
and  silver  in  valuable  and  paying  quantities,  the  posting  by  him  in  his 
name  and  that  of  the  plaintiff,  at  the  point  of  discovery,  of  a  notice  that 
they  claimed  1,500  feet  on  the  lode,  the  intrusion  of  the  defendants  upon 
the  claim,  their  ousting  the  locators,  and  other  facts  which  are  detailed  by 
the  record  in  the  case  decided,  and  the  commencement  of  the  action  at" 
law.  It  also  alleges  that  the  defendants  were  working  the  claim,  and  had 
extracted  from  it  one  himdred  and  fifty  tons,  or  thereabouts,  of  ore,  con- 
taining gold  and  silv^or  of  the  value  of  $25,000,  and  that  about  one  hun- 
drc(l  tons  remain  in  their  possession  on  the  premises.  The  bill  prays  for 
a  writ  of  injunction  restraining  the  defendants  from  mining  on  the 
<']aim,  or  extracting  ore  therefrom,  or  removing  any  ore  already  extracted, 
until  the  final  d(!termination  of  the  action  at  law.  The  principal  facts 
stated  in  the  bill  are  supported  by  affidavits  of  third  parties.  The  court 
|?ranted  a  preliminary  injunction,  but,  after  the  trial  of  the  action  at 
law,  judgment  being  rendered  therein  in  favor  of  the  defendants,  it 


CHAP.  I.]  EEHAEDT  v.  BOARO  and  others  705 

dissolved  the  iiijiiiictioii  and  dismissed  the  bill.  From  the  decree  of  the 
court  the  case  is  brought  here  by  appeal. 

It  was  formerly  the  doctrine  of  equity,  in  cases  of  alleged  trespass  on 
land,  not  to  restrain  the  use  and  enjoyment  of  the  premises  by  the  de- 
fendant when  the  title  was  in  dispute,  but  to  leave  the  complaining  party 
to  his  remedy  at  law.  A  controversy  as  to  the  title  was  deemed  sufficient 
to  exclude  the  jurisdiction  of  the  court.  In  Pillsworth  v.  Ilopton,  6 
Vesey,  51,  which  was  before  Lord  Eldon  in  1801,  he  is  reported  to  have 
said  that  he  remembered  being  told  in  early  life  from  the  bench  "that 
if  the  plaintiff  filed  a  bill  for  an  account  and  an  injunction  to  restrain 
waste,  stating  that  the  defendant  claimed  by  a  title  adverse  to  his,  he 
stated  himself  out  of  court  as  to  the  injunction."  This  doctrine  has 
been  greatly  modified  in  modern  times,  and  it  is  now  a  common  practice 
in  cases  where  irremediable  mischief  is  being  done  or  threatened,  going 
to  the  destruction  of  the  substance  of  the  estate,  such  as  the  extracting 
of  ores  from  a  mine,  or  the  cutting  down  of  timber,  or  the  removal  of 
coal,  to  issue  an  injunction,  though  the  title  to  the  premises  be  in  litiga- 
tion. The  authority  of  the  court  is  exercised  in  such  cases,  through  its 
preventive  writ,  to  preserve  the  property  from  destruction  pending  legal 
proceedings  for  the  determination  of  the  title.  Jerome  v.  Ross,  7  Johns. 
Ch.  315,  332 ;  Le  Roy  v.  Wright,  4  Sawyer,  530,  535. 

As  the  judgment  in  the  action  at  law  in  favor  of  the  defendants  has 
been  reversed,  and  a  new  trial  ordered,  the  reason  which  originally 
existed  for  the  injunction  continues. 

The  decree  of  the  court  below  must,  therefore,  be  reversed,  and  the 
cause  remanded,  with  directions  to  restore  the  injunction  until  the 
final  determination  of  that  action ;  and  it  is  so  ordered.' 

*In  Griffith  v.  Hilliard,  1890,  64  Vt.  643,  645,  Stakt,  J.,  after  citing  and 
following  the  principal  case,  said: 

"When  it  appears  that  the  title  is  in  dispute,  the  court  may,  in  its  discre- 
tion, issue  a  temporary  injunction  and  continue  it  in  force  for  such  time 
as  may  be  necessary  to  enable  the  orator  to  establish  his  title  in  a  court 
of  law,  and  may  make  the  injunction  perpetual  when  the  orator  has  thus 
established  his  title ;  or  the  court  may  proceed  and  determine  which  party  has 
the  better  title ;  or  it  may  dismiss  the  bill  and  leave  the  orator  to  his  legal 
remedy.  Bacon  v.  Jones,  4  Mylne  &  Craig  433;  The  Duke  of  Beaufort  v. 
Morris,  6  Hare  340;  Campbell  v.  Scott,  11  Simons  31;  Kerr  on  Injunctions, 
209;  Ingraham  v.  Bunnell  et  al.,  5  Met.  118;  Rooney  v.  Soule,  45  Vt.  303; 
Wing,  Admr.  v.  Hall  et  al.,  44  Vt.  118;  Lyon  v.  McLaughlin,  32  Vt.  423; 
Hastings,  Admr.,  v.  Perry  et  al.,  20  Vt.  278;  Barnes  v.  Dow,  59  Vt.  530; 
Barry  v.  Harris,  49  Vt.  392." 

The  form  of  a  decree  so  framed  to  do  justice  alike  to  plaintiff  and  defendant 
is  that  of  Judge  Goff,  in  Wood  v.  Braxton,  1892,  54  P'ed.  R.  1005,  1010. 


706  WILLIAMS  v.  N.  Y.  C.  R.  R.  CO.  [part  ii. 

WILLIAMS  V.  THE  NEW  YORK  CENTRAL  RAILROAD  CO. 

In  the  Court  of  Appeals  of  New  York,  1857. 
[16  New  York  97.] 

Selden,  J.'  This  is  a  suit  in  equity,  the  object  of  which  is  to  obtain 
a  perpetual  injunction,  restraining  the  defendants  from  continuing  to 
use  and  occupy  with  their  railway  a  portion  of  a  certain  highway  or 
street  in  the  village  of  Syracuse,  known  as  Washington  street,  and  to 
recover  damages  for  its  past  occupation.  Washington  street  was 
gratuitously  dedicated  to  the  use  of  the  public  by  the  plaintiff  and  others, 
through  whose  land  it  was  laid;  and  the  Utica  and  Syracuse  Railroad 
Company,  to  the  rights  and  liabilities  of  which  the  defendants  have 
succeeded,  constructed  their  railway  upon  it  without  making  any  com- 
pensation to  the  plaintiff,  and  without  his  consent.  At  the  time  the  track 
was  laid  the  plaintiff  was  the  owner  of  a  large  number  of  lots  fronting 
upon  the  street,  a  portion  of  which  he  has  since  sold,  with  a  reservation 
of  his  claim  against  the  railroad  company  for  damages,  and  a  portion 
of  which  he  still  owns.  The  damages  which  have  accrued,  both  upon  the 
sold  and  unsold  portions  of  the  premises,  are  claimed  in  this  suit. 

It  is  conceded  that,  by  the  dedication,  the  public  acquired  no  more  than 
the  ordinary  easement  or  right  to  use  the  premises  as  a  highway;  and 
that  the  plaintiff  continues  the  owner  in  fee,  in  respect  to  the  unsold 
lots,  to  the  center  of  the  street,  subject  only  to  this  easement. 

I  concur  with  the  learned  chief  justice,  and  have  no  hesitation  in  com- 
ing to  the  conclusion  that  the  dedication  of  land  to  the  use  of  the  public 
as  a  highway  is  not  a  dedication  of  it  to  the  use  of  a  railroad  company; 
that  the  two  cases  are  essentially  different;  and  that,  consequently,  a 
railway  cannot  be  built  upon  a  highway  without  compensation  to  the 
owners  of  the  fee. 

It  follows  that  the  defendants,  in  constructing  their  road  upon  Wash- 
ington street  without  the  consent  of  the  plaintiff,  and  without  any 
appraisal  of  his  damages  or  compensation  to  him  in  any  form,  were  guilty 
of  an  unwarrantable  intrusion  and  trespass  upon  his  property,  and  that 
he  is  entitled  to  relief.  Although  he  had  a  remedy  at  law  for  the  trespass, 
yet,  as  the  trespass  was  of  a  continuous  nature,  he  had  a  right  to  come 
into  a  court  of  equity,  and  to  invoke  its  restraining  power  to  prevent  a 
multiplicity  of  suits,  and  can  of  course  recover  his  damages  as  incidental 
to  this  equitable  relief.  There  may  be  doubt  as  to  his  right  to  recover  in 
this  suit  the  damages  upon  the  lots  which  have  been  sold;  because,  as  to 
those  lots,  there  was  no  occasion  to  ask  any  equitable  relief,  and  to  permit 
the  damages  to  be  assessed  in  this  suit,  in  effect  dejjrives  the  defendants 

*  Only  HO  much  of  the  opinion  is  given  as  relates  to  the  right  to  an 
injunction. 


CHAP.  I.]  HENDERSON  v.  N.  Y.  C.  R.  R.  CO.  Y07 

of  the  right  to  have  them  assessed  by  a  jury.    But  as  this  question  has  not 

been  raised,  it  is  unnecessary  to  consider  it. 

The  judgment  must  be  reversed,  and  there  must  be  a  new  trial,  with 

costs  to  abide  the  event.       ^    ,  ,        ,  •  t        i       , 

Judgment  reversed  and  new  trial  ordered. 

On  the  third  trial  of  the  ease  then  called  Henderson  v.  The  New  York 
Central  R.  R.  Co.  the  referee  ordered  judgment  in  favor  of  the  plaintiffs, 
successors  in  interest  of  the  original  party,  for  $19,508.79  damages,  be- 
sides, costs,  and  further  ordered  that  if  the  plaintiffs  tender  to  the 
defendants  a  conveyance  of  their  interest  in  the  land  in  question,  in  said 
street,  and  a  release  of  their  damages,  except  said  sum  of  $19,508.79,  the 
defendants  shall  pay  to  the  plaintiffs  the  further  sum  of  $4,339.43  and 
interest  from  the  date  of  the  report ;  and  in  default  of  such  payment,  the 
defendants  shall  be  perpetually  enjoined  from  using  such  portions  of  said 
street,  and  if  the  plaintiffs  fail  to  make  such  tender,  the  injunction  is 
denied. 

On  this,  the  second  appeal  in  the  action  now  entitled  Henderson  v. 
N.  Y.  Central  R.  R.  Co.,  1879,  78  N.  Y.  423,  Danforth,  J.,  delivered 
the  opinion  of  the  court  as  follows  :^ 

"  The  relief  sought  is :  First,  damages.  Second,  an  abatement  of  the 
use  of  the  railroad,  and  a  removal  of  the  track.  Third,  an  injunction 
against  the  running  of  trains,  or  if  the  defendants  are  permitted  to  use 
the  track  to  do  so  only  on  condition  that  the  plaintiff  shall  first  be  paid 
his  damages.  The  amount  of  the  depreciation  is  stated,  and  the  allowance 
of  this  item,  and  the  admission  of  evidence  relating  to  it,  presents  one 
of  the  principal  questions  before  us.  The  other  arises  upon  the  conclu- 
sion of  the  referee  that  if  the  plaintiffs  shall,  within  a  time  limited, 
tender  to  the  defendant  a  conveyance  of  all  the  interest  which  Williams 
at  the  time  of  his  death  had  in  the  land  lying  in  front  of  the  lots  above 
referred  to,  and  on  which  the  defendant's  road  is  located,  and  release 
the  defendant  from  all  claim  from  damages  arising  from  the  location, 
construction,  and  use  of  its  railroad  in  said  street  (except  the  damages 
above  referred  to),  then  the  defendant  shall  pay  the  plaintiffs  the  further 
sum  of  $4,339.43,  and  interest  from  the  date  of  the  report,  or  in  default 
of  such  payment  the  defendant  shall  be  enjoined  from  using  said  rail- 
road upon  the  land  in  front  of  the  lots  specified. 

As  to  the  question  last  stated,  the  case  is  plainly  for  the  plaintiffs. 
Equitable  relief  is  awarded,  not  as  the  defendant's  counsel  claims  by  way 
of  menace,  or  as  a  means  of  compelling  the  payment  of  money,  but  that 
the  defendant  may  desist  from  the  unauthorized  use  of  the  plaintiff's 
property,  and  forbear  from  any  further  interference  with  their  rights. 
To  hold  otherwise  would  leave  the  citizen  remediless  against  the  power 
of  a  corporation  to  acquire  and  use  property  without  compensation,  and 
to  prevent  that,  the  court  ought  not  to  be  reluctant  to  exercise  its  juris- 
diction.    The  facts  in  this  case  show  that  the  entry  upon  the  land  in 

*  Part  of  the  opinion  citing  and  discussing  authorities  is  omitted. 


708  HENDEKSON  v.  N.  Y.  C.  R.  R.  CO.  [part  ii. 

Question  was  under  the  belief  that  the  right  to  do  so  had  been  obtained, 
but  it  was  not  so,  and  the  decree  in  this  particular  is  just.  The  defendant 
is  not  required  to  pay  the  money.  It  may  submit  to  the  injunction.  Nor 
did  the  referee  exceed  his  jurisdiction  in  awarding  it.  All  the  issues 
in  the  action  were  referred  to  him  to  try  and  determine,  and  it  was  his 
duty  to  award  the  proper  judgment.  In  the  exercise  of  its  equitable 
jurisdiction  the  court,  or  referee  acting  in  its  place,  may  give  full  relief, 
having  regard  to  the  rights  and  interests  of  both  parties.  It  has  done 
so  in  this  case.  In  view  of  the  annoyance  and  expense  incident  to  the 
stoppage  of  the  defendant's  trains,  it  was  just  to  open  the  doors  of 
escape  and  permit  the  defendant  at  once  to  acquire  title  to  the  land 
occupied,  and  thus  avoid  the  delay  incident  to  other  proceedings  for  that 
purpose,  but  it  was,  notwithstanding,  optional  with  the  defendant  to 
comply  with  the  conditions.  The  plaintiffs  could  not  require  it,  but 
they  would  be  bound  by  the  judgment,  and  the  defendant  become,  on  per- 
forming the  condition,  purchaser  of  the  land  with  rights  not  inferior 
to  those  obtained  by  appraisement  and  payment  of  damages  under  the 
statute.  Wood  v.  Auburn  and  Rochester  R.  R.  Co.,  8  N.  Y.  160.  But 
the  decision  of  this  court  upon  the  former  appeal,  Williams  v.  N.  Y.  C. 
R.  R.  Co.,  16  N.  Y.  97,  established  the  plaintiff's  right  to  an  injunction, 
and  nothing  need  be  added  upon  this  point. 

As  to  the  other  question  it  was  also  then  held  that  the  right  of  the 
plaintiff  to  come  into  a  court  of  equity,  rested  upon  the  fact  that  the 
trespass  complained  of  was  of  a  continuous  nature,  and  that  he  might 
invoke  its  restraining  power  to  prevent  a  multiplicity  of  suits,  and  could 
of  course  recover  his  damages  as  incidental  to  this  equitable  relief.  It 
would  seem,  therefore,  that  the  plaintiff  should  recover  in  this  action 
all  his  damages,  for  if  not,  then  the  apprehended  evil  would  not  be 
averted,  and  the  defendant  would  be  subjected  to  fresh  litigation  from 
day  to  day,  and  neither  party  be  better  off  than  if  the  plaintiff  had 
resorted  to  the  other  forum;  but  as  it  is,  the  court  has  power  to  do  com- 
plete justice^  and  a  purpose  to  render  it  must  have  been  in  the  mind  of 
the  court  upon  the  first  appeal,  or  its  language  would  have  been  qualified, 
and  not  general. 

McRae  v.  The  London,  Brighton,  and  South  Coast  Railway  Co.,  37 
Law  Jour.  R.,  1868,  Eq.  p.  267,  was  not  unlike  the  case  before  us.  At 
the  time  of  filing  the  bill  the  plaintiffs  were  entitled  to  an  injunction 
against  the  railroad  company,  and  damages  were  awarded  at  the  hearing, 
although  no  injunction  was  in  fact  obtained,  and  the  plaintiffs'  interest 
in  the  land  had  meanwhile  determined.  The  railroad  had  taken  pos- 
session in  good  faith,  but  without  making  compensation.  The  Chan- 
cellor said :  "  I  certainly  entertain  the  impression  that  on  questions  of 
this  kind  whore  there  is  a  doubt  about  the  jurisdiction,  or  whether  the 
court  ought  to  interfere  both  for  the  sake  of  the  plaintiff  and  the  de- 
fendant, the  court  ought  to  stretch,  rather  than  to  narrow  its  jurisdiction, 
and  that  finding  a  question  actually  raised  upon  the  pleadings  which 


CHAP.  I.]  HENDERSON  v.  N.  Y.  C.  R.  R.  CO.  709 

either  party  has  a  right  to  have  decided,  it  ought  not  to  send  a  plaintiff 
who  has  fairly  brought  that  question  before  the  court  to  pursue  his 
relief  elsewhere,"  and  so  an  inquiry  was  ordered  as  to  the  sum  proper 
to  be  awarded  the  plaintiff  in  respect  of  the  damages  for  the  matters 
complained  of  in  the  bill. 

It  is,  however,  objected  that  the  plaintiff  should  have  in  this  action 
no  damages  save  for  the  actual  trespass  up  to  the  time  of  bringing  the 
action,  and  should  by  successive  actions  have  accruing  damages,  for  the 
maintenance  of  the  railroad,  subsequent  to  the  commencement  of  the 
action,  or  only  nominal  damages  for  the  original  trespass  until  by  the 
action  of  ejectment  he  has  possession,  and  that  for  damages  for  the 
depreciation  in  value  above  referred  to  he  should  wait  until  the  defendant 
institutes  proceedings  to  acquire  title  under  the  statute  relating  to  that 
matter.  If  that  is  so,  a  court  of  equity  is  powerless,  the  multiplicity 
of  actions  not  prevented,  and  a  new  and  altogether  useless  litigation 
encouraged  for  no  good  purpose.  I  thinlv  the  objections  not  tenable,  and 
discover  no  reason  for  denying  any  relief  to  which  the  plaintiff  would 
in  any  action,  or  before  any  tribunal,  be  entitled.  The  defendant  has, 
for  the  purposes  of  its  incorporation,  entered  upon  an  exclusive  and 
permanent  occupation  of  the  land ;  embedded  therein  its  track,  and  is 
enjoying  it  as  fully  as  if  the  right  to  do  so  had  been  legally  secured; 
in  that  event  compensation  must  have  been  made  to  the  owner,  and  the 
two  things  concurring,  the  title  of  the  defendant  would  be  complete,  and 
the  owner  legally  satisfied.  The  same  result  should  be  reached  in  this 
proceeding.  The  parties  are  before  the  court ;  they  have  had  their  day : 
Those  matters  have  been  passed  upon  which  might  have  gone  before 
commissioners  under  the  statute,  and  for  every  trespass  the  plaintiff" 
may  recover  in  this  action.  For  that  reason  only  was  it  entertained. 
No  doubt  an  action  might  have  been  brought  for  -the  original  trespass, 
in  entering  and  placing  the  railroad  structures  upon  the  land,  and  other 
successive  actions  for  continuing  it,  for  in  such  a  case  it  is  said  that 
recovery  of  damages  in  the  first  action  by  way  of  satisfaction  for  the 
wrong,  would  not  operate  as  a  purchase  of  the  right  to  continue  the 
injury.    Mahon  v.  N.  Y.  C.  R.  R.,  24  N.  Y.,  658. 

In  the  case  at  bar  the  injurious  consequence  was  single,  the  result  of 
one  wrongful  act,  and  could  not  be  divided  or  estimated  from  day  to  day ; 
it  was  not  temporary,  but  permanent.  The  street  was  practically  taken 
away  so  far  as  its  uses  as  a  street  were  concerned,  and  the  injury  was 
direct  as  affecting  the  property  of  the  plaintiff,  Beckett  v.  The  Midland 
Railway  Co.,  L.  R.  3  C.  P.  81,  and  the  immediate  depreciation  of  its 
value.  In  The  Town  of  Troy  v.  The  Cheshire  R.  R.  Co.,  3  Foster, 
23  N.  H.  83,  while  it  was  held  that  the  plaintiff  could  recover  only 
for  the  damages  which  had  been  sustained  at  the  time  of  the  commence- 
ment of  the  suit,  yet  it  was  considered  that  all  the  damages  which  the 
plaintiff  had  sustained,  or  could  sustain,  accrued  when  the  defendant's 
road  was  built,  and  that  only  one  recovery  could  be  had;  the  court  in 


710  HENDEKSON  v.  N.  Y.  C.  R.  R.  CO.  [part  ii. 

that  case  say :  "  Whenever  the  nuisance  is  of  such  a  character,  that  its 
continuance  is  necessarily  an  injury,  and  when  it  is  of  a  permanent 
character  that  will  continue  without  change  from  any  cause  but  human 
labor,  then  the  damage  is  an  original  damage,  and  may  be  at  once  fully 
compensated,  since  the  injured  person  has  no  means  to  compel  the  indi- 
vidual doing  the  wrong  to  apply  the  labor  necessary  to  remove  the  cause 
of  injury,  and  can  only  cause  it  to  be  done,  if  at  all,  by  the  expenditure 
of  his  own  means,"  and  there  are  other  cases  to  the  same  effect. 

This  doctrine  is  of  little  practical  importance  if  the  power  of  a  court 
of  equity  to  give  damages,  when  it  has  acquired  jurisdiction,  is  confined 
to  cases  in  which  the  plaintiff  could  recover  damages  at  law,  or  if  it  is 
to  measure  them  by  the  same  rule.  It  is  not.  In  Mayne  on  Damages, 
page  465,  the  learned  author,  speaking  of  the  assessment  of  damages  in 
the  Court  of  Chancery,  says :  "  The  damages  awarded  differ  from  those 
which  could  be  obtained  at  law,  in  being  given  by  way  of  comjjensation  for 
permanent  injury  once  for  all,  not  as  at  law  where  successive  actions  may 
be  brought,  and  damages  recovered  toties  quoties."  Citing  the  language 
of  Lord  Cransworth  in  Stokes  v.  The  City  OiEces  Co.,  limited,  13  L.  T. 
N.  S.  81;  and  see  2  Story's  Eq.  Jur.  §  994.  In  Watson  v.  Hunter,  5 
John.  Ch.  169,  Chancellor  Kent  says :  "  The  remedy  for  waste  already 
committed  is  merely  incidental  to  the  jurisdiction  assumed  to  prevent 
multiplicity  of  suits,  and  to  save  the  party  from  resorting  to  trover  at 
law,"  and  citing  Jesus  College  v.  Bloom,  3  Atk.  262,  says :  "  The  ground 
for  coming  into  chancery  was  to  stay  waste,  and  not  for  satisfaction  for 
the  damages,  as  the  commission  of  waste  was  a  tort,  and  the  remedy  at 
law;  but  to  prevent  multiplicity  of  suits,  .  .  .  the  court  would  make 
a  complete  decree,  and  give  the  injured  party  a  satisfaction  for  what  had 
been  done,  and  not  put  him  to  an  action  at  law."  To  the  same  effect  is 
Smith  V.  Cooke,  3  Atk.  381 ;  Bird  v.  The  W.  and  M.  R.  R.  Co.,  8  Richard- 
son Eq.  46.  These  views  are  also  sustained  by  the  decision  of  this  court 
upon  the  first  appeal.  After  discussing  the  rights  of  the  respective 
parties,  Selden,  J.,  says :  "  It  follows  that  the  defendants  in  construct- 
ing their  road  upon  Washington  street  without  the  consent  of  the  plain- 
tiff, and  without  any  appraisal  of  his  damages  or  compensation  to  him  in 
any  form,  were  guilty  of  an  unwarrantable  intrusion,  and  the  trespass 
upon  his  property,  and  he  is  entitled  to  relief,"  and  indicating,  as  it 
seems  to  me,  the  measure  of  relief,  the  learned  judge  says:  "Although 
he  had  a  remedy  at  law  for  the  trespass,  yet  as  the  trespass  was  of  a  con- 
tinuous nature  he  had  a  right  to  come  into  a  court  of  equity,  and  to 
invoke  its  restraining  power."  Why?  To  prevent  a  multiplicity  of  suits, 
and  can  of  course  recover  his  damages  as  incidental  to  this  equitable 
relief.  And  this  general  rule  is  well  stated  by  Earl,  J.,  in  a  recent  case. 
Mad.  Ave.  Bapt.  Church  v.  Bapt.  Church  in  Oliver  St.,  73  N.  Y.  95. 
"  It  is,"  he  says,  "  the  practice  of  courts  of  equity,  where  thoy  have  once 
f)bfained  a  jurisdiction  of  a  case,  to  administer  all  the  relief  which  the 
Tiaturt;  of  the  case  and  the  facts  demand,  and  to  bring  such  relief  down 


CHAP.  I.]  WHEELOCK  v.  NOONAN  Yll 

to  the  close  of  the  litigation  between  the  parties."  Again  the  court  as 
one  of  equity  may  not  only  render  full  compensation  to  the  plaintiff,  but 
may  do  it  on  such  terms  as  will  secure  to  the  defendant,  rights  corres- 
ponding to  those  given  by  the  statute  as  a  consequence  of  proceedings  to 
acquire  the  right  they  have  wrongfully  taken.  It  has  been  done  in  this 
case.  If  the  defendant  complies  with  the  conditions  of  the  judgment, 
it  is  protected  to  the  largest  extent  in  the  enjoyment  of  the  roadway, 
and  can  be  no  longer,  or  in  any  other  action,  vexed.  If  it  does  not  accept 
the  conditions  and  chooses  to  proceed  under  the  statute,  the  record  of 
this  judgment  will  prevent  the  allowance  of  any  damages  for  injury  to 
the  land  not  actually  taken,  or  for  any  cause  covered  by  its  provisions, 
Vedder  v.  Vedder,  1  Denio  257,  and  leave  the  defendant  liable  only  for 
those  which  may  be  assessed  for  the  roadway. 

The  judgment  should  be   affirmed,   with   costs.     All   concur,   except 
Earl,  J.,  dissenting.    Judgment  affirmed. 


WHEELOCK  V.  NOONAN.' 

In  the  Court  of  Appeals  of  New  York,  1888. 

[108  Nevj  York,  179.] 
Printed  ante,  p.  94. 

*  The  doctrine  of  the  principal  case  is  of  well-nigh  universal  application,  and 
■whether  the  injury  sought  to  be  enjoined  is  a  repeated  or  continuous  trespass 
equity  will  intervene  and  by  a  single  decree  right  the  wrong  and  bind  the 
trespassers  to  keep  the  peace. 

A  striking  example  of  the  continuing  trespass  is  that  of  a  railroad  running 
its  trains  over  land  belonging  to  the  plaintiflF.  It  is  obvious  that  a  right  of 
action  accrues  with  each  passage,  but  the  damages  suffered  and  received  will 
be  limited  to  the  act  for  which  suit  is  brought. 

The  plaintiff  does  not  want  damages ;  he  wants  the  trespasses  stopped.  This 
the  strong  arm  of  equity  does,  and  having  taken  jurisdiction  for  one  purpose, 
holds  it  for  all.  In  one  and  the  same  action  damages  may  be  recovered  for  the 
trespasses  as  well  as  the  injunction  against  the  trespassers.  See  on  this 
i?ubject  the  interesting  and  principal  cases,  Williams  v.  N.  Y.  C.  R.  R.  Co., 
1857,  16  N.  Y.  97;  Henderson  v.  N.  Y.  Central  R.  R.  Co.,  1879,  78  N.  Y.  423 
swpra;  in  which  the  Williams  suit  was  ended  after  twenty  years  of  litigation. 

See  for  other  acts  of  trespass,  for  which  injunctions  were  granted,  Hodg- 
son V.  Druce,  1856,  9  Jurist,  n.s.,  1014;  Richards  v.  Dower,  1883,  64  Cal. 
62,  in  which  a  defendant  was  properly  enjoined  from  tunnelling  under  plain- 
tiff's land;  Goodson  v.  Richardson,  1874,  L.  R.  9  Chancery  App.  221,  in 
Avhich  defendant  was  enjoined  from  placing  waterpipes  in  plaintiff's  land. 

For  a  collection  of  authorities  on  trespass,  and  the  rules  regulating 
the  granting  of  injunctions,  see  the  elaborate  notes  in  11  Am.  Dec.  497-507; 
22  L.  R.  A.  235-238.^ 


712  KING  V.  STUART  [part  il 

STRAWBERRY  VALLEY  CATTLE  CO.  v.  CHIPMAN. 

In  the  Supreme  Court  of  Utah,  1896. 
[13  Utah,  454.] 

Action  by  the  Strawberry  Valley  Cattle  Company  against  John  I. 
Chipman  for  damages  sustained  by  plaintiff  in  consequence  of  the  tres- 
pass of  defendant's  sheep  upon  the  land  leased  by  the  plaintiff  from  the 
Indians  on  their  reservation  at  Uintah.  Damages  were  asked  for  and  also 
an  injunction  to  prevent  further  injury  to  the  grazing  lands.  From  a 
judgment  sustaining  the  validity  of  plaintiff's  lease  and  enjoining  de- 
fendant from  further  trespass,  the  latter  appeals.    AfRrmed. 

Bartch,  J.  The  evidence  tended  to  show  that  the  trespass  com- 
plained of  was  continued  and  continuing  until  the  service  upon  the 
defendant  of  the  restraining  order,  and  that  grass  and  verdure  were  de- 
stroyed, and  a  portion  of  the  leased  land  rendered  worthless  for  the  re- 
mainder of  the  term  of  the  lease.  Where  acts  of  trespass  are  repeated, 
continuing,  and  ruinous,  or  the  damage  irreparable,  and  a  remedy  at  law 
would  be  inadequate,  an  injunction  will  lie.  Spell.  Extr.  Rem.  §  337; 
High,  Inj.  §  097;  Lembeck  v.  Nye  (Ohio  Sup.)  24  N.  E.  686;  Erhardt 
V.  Boaro,  113  U.  S.  537,  5  Sup.  Ct.  565;  Haines  v.  Hall  (Or.)  20  Pac. 
831;  Hicks  v.  Compton,  18  Cal.  206;  Boyce's  Ex'rs.  v.  Grundy,  3  Pet. 
210. 

We  are  of  the  opinion  that  the  respondent  is  entitled  to  the  pos- 
session of  the  land  in  question,  by  virtue  of  its  lease,  and  that  there  is 
no  reversible  error  in  the  record.     The  judgment  is  affirmed. 

Miner,  J.,  and  Street,  District  Judge,  concur. 


KING  V.  STUART. 


Circuit  Court  of  the  United  States,  Western  Division  of  Virginia, 

1897. 

[84  Federal  Reports,  546.] 

Paul,  District  Judge.  This  is  a  suit  brought  by  the  plaintiff,  Henry  C. 
King,  to  restrain  the  defendants  from  cutting  and  carrying  away  the 
timber  of  the  j)laiiitiff  on  certain  lands  claimed  by  him,  lying  in 
Buchanan  County,  Va.,  the  same  being  part  of  a  tract  of  500,000  acres 
lying  in  the  States  of  Virginia,  West  Virginia,  and  Kentucky.  The 
phiiiitiff   traces   his   title  from   a  grant   by   the   commonwealth   of   Vir- 


CHAP.  I.]  KING  V.  STUART  713 

ginia  to  Robert  Morris,  dated  June  23,  1795,  and,  through  successive  con- 
veyances to  himself. 

The  defendant  II.  C.  Stuart  demurs  to  the  bill,  and  assigns  as  grounds 
of  demurrer: 

"First.  That  the  said  plaintiff  has  a  full,  complete,  and  adequate  rem- 
edy at  law,  and  is  not,  therefore,  entitled  to  relief  in  equity  for  the 
matters  complained  of  in  said  bill.  Second.  The  said  bill  is  in  other 
respects  uncertain,  informal,  and  insufficient,  and  for  other  reasons  to  be 
assigned  at  bar." 

The  first  ground  of  demurrer,  viz.  "that  the  plaintiff  has  a  full,  com- 
plete, and  adequate  remedy  at  law,  and  is,  therefore,  not  entitled  to 
relief  in  equity  for  the  matters  complained  of  in  said  bill,"  presents  a 
clearly  defined  and  important  question  for  decision.  A  demurrer  to  a  bill 
in  equity  admits  the  truth  of  the  allegations  of  fact  in  the  bill  so  far  as 
the  same  are  well  pleaded.  1  Fost.  Fed.  Prac.  §  108.  The  defendants  in 
this  cause,  by  their  demurrer,  admit  that  the  complainant  has  title  to 
the  land  mentioned  in  the  bill  lying  within  this  district,  and  that  he  is  in 
possession  of  the  same.  They  likewise  admit  that  the  defendants  have  no 
title  to  said  land ;  that  they  are  not  in  possession  thereof.  They  admit 
that  the  land  is  wild  and  uncultivated;  that  it  is  heavily  timbered  with 
a  valuable  growth  of  poplar,  oak,  walnut,  and  other  valuable  trees,  and  is 
practically  worthless  for  agricultural  purposes;  that  it  was  purchased 
by  the  complainant  solely  on  account  of  the  timber;  that  they  have, 
against  the  protest  of  the  plaintiff,  entered  upon  said  land,  and  have  cut 
down,  and  are  preparing  and  threatening  to  remove,  a  large  quantity  of 
valuable  walnut  and  other  timber;  that  they  enjoy  ready  facilities  for  re- 
moving the  same  out  of  the  State  of  Virginia  into  the  States  of  Ken- 
tucky and  West  Virginia.  They  further  admit  the  facts  upon  which 
it  is  alleged  that  these  trespasses,  if  permitted  to  continue,  will  result 
in  permanent  and  irreparable  injury  and  damage  to  the  land  and  to  the 
plaintiff.  Admitting  these  facts,  the  defendants  insist  that  a  court  of 
equity  cannot,  by  injunction,  prevent  an  actual  or  threatened  trespass 
going  to  the  destruction  of  the  growing  timber,  and  thereby  causing  irre- 
parable damage  to  the  plaintiff.  It  has  frequently  been  held  by  this  court, 
and  by  the  circuit  court  of  appeals  for  this  circuit,  that,  pending  an 
action  at  law  to  try  the  title  to  land,  an  injunction  will  lie  to  prevent  the 
cutting  and  removal  of  timber  until  the  question  of  the  title  has  been 
determined  at  law;  that  the  interests  of  the  parties  should  remain  in 
statu  quo  pending  the  litigation  of  the  title.  The  defendants  in  this 
cause  insist  that,  as  there  is  no  action  pending  at  law  involving  the  title 
to  the  land,  an  injunction  will  not  lie  to  prevent  the  destruction  of 
timber,  which  the  plaintiff  alleges  will  result  in  irreparable  injury  to 
him.  The  contention  of  the  defendants  is  that  the  plaintiff  has  a  full, 
adequate,  and  complete  remedy  at  law  for  any  damage  he  may  suffer  by 
reason  of  the  trespasses  of  which  he  complains ;  that  this  remedy  is  an 
action  at  law  for  damages,  to  be  measured  by  the  value  of  the  timber  re- 


714  KING  V.  STUART  [part  ii. 

moved.  That  this  was  the  doctrine  at  common  law  is  admitted,  but  that 
its  strictness  has  been  greatly  modified  by  the  decisions  of  courts  of 
equity  in  England  and  in  this  country  is  too  well  established  to  admit  of 
discussion.  A  leading  case  in  this  country  on  this  subject  is  that  of 
Jerome  v.  Ross,  7  Johns.  Ch.  315.  In  this  case  Chancellor  Kent,  while 
closely  adhering  to  the  common-law  doctrine,  said: 

"In  ordinary  cases,  this  latter  remedy  (an  action  at  law)  has  been 
found  amply  sufficient  for  the  protection  of  property,  and  I  do  not  think 
it  advisable,  upon  any  principle  of  justice  or  policy,  to  introduce  the 
chancery  remedy  as  its  substitute,  except  in  strong  and  aggravated  in- 
stances of  trespass  which  go  to  the  destruction  of  the  inheritance,  or 
where  the  mischief  is  remediless." 

He  further  says : 

"I  do  not  know  a  case  in  which  an  injunction  has  been  granted  to  re- 
strain a  trespasser  merely  because  he  was  a  trespasser,  without  showing 
that  the  property  itself  was  of  peculiar  value,  and  could  not  well  admit 
of  due  recompense,  and  wovdd  be  destroyed  by  repeated  acts  of  tres- 
pass." 

As  cautiously  and  carefully  as  Chancellor  Kent  states  the  law,  it 
seems  that  his  view  of  the  doctrine  would  cover  the  case  at  bar,  and 
entitle  the  plaintiff  to  an  injunction.  But  the  law  of  injunction  against 
trespass  has,  since  the  decision  in  Jerome  v.  Ross,  been  relaxed  and 
expanded  until  now  it  it  held  that  an  injunction  will  lie  to  restrain 
trespass  whenever  the  injury  done  or  threatened  would  result  in  irre- 
parable injury,  or  the  defendant  is  insolvent.  It  will  also  be  granted 
■where  the  entire  wrong  cannot  be  redressed  by  one  action  at  law 
for  damages;  this  on  the  principle  that  equity  will  interpose  by  injunc- 
tion to  prevent  a  multiplicity  of  suits.  The  result  of  the  recent  English 
and  American  decisions  is  very  clearly  stated  in  Pom.  Eq.  Jur.  §  1357, 
as  follows : 

"If  a  trespass  to  property  is  a  single  act,  and  is  temporary  in  its  nature 
and  effects,  so  that  the  legal  remedy  of  an  action  at  law  for  damages 
is  adequate,  equity  will  not  interfere.  The  principle  determining  the 
jurisdiction  embraces  two  classes  of  cases,  and  may  be  correctly  for- 
mulated as  follows:  (1)  If  the  trespass,  although  a  single  act,  is  or  would 
be  destructive,  if  the  injury  is  or  would  be  irreparable, — that  is,  if  the  in- 
jury done  or  threatened  is  of  such  a  nature  that,  when  accomplished, 
the  property  cannot  be  restored  to  its  original  condition,  or  cannot 
be  replaced  by  means  of  compensation  in  money, — then  the  wrong  will  be 
prevented  or  stopped  by  injunction.  (2)  If  the  trespass  is  continuous 
in  its  nature,  if  repeated  acts  of  wrong  are  done  or  threatened,  although 
fach  of  these  acts,  taken  by  itself,  may  not  be  destructive,  and  the  legal 
reirifdy  may  therefore  be  adequate  for  each  single  act  if  it  stood  alone, 
tlicri  also  the  entire  wrong  will  be  prevented  or  stopped  by  injunction, 
on.  the  ground  of  avoiding  a  repetition  of  similar  actions.  In  both  cases 
the  ultimate  criterion  is  the  inadequacy  of  the  legal  remedy." 


CHAP.  I.]  KING  V.  STUART  715 

A  note  to  this  section  says : 

"  The  legal  remedy  is  not  adequate  simply  because  a  recovery  of 
pecuniary  damages  is  possible.  It  is  only  adequate  when  the  injured  party 
can,  by  one  action  at  law,  recover  damages  which  constitute  a  complete 
and  certain  relief  for  the  whole  wrong, — a  remedy  virtually  as  efficient 
as  that  given  by  a  court  of  equity.  This  conclusion  is  sustained  by  the 
concensus  of  modern  decisions  of  the  highest  authority,  although  it  can- 
not be  claimed  that  the  cases  are  unanimous  in  its  acceptance." 

In  Spell.  Extr.  Relief,  §  14,  it  is  said  that : 

"  Injunction  will  lie  to  prevent  threatened  trespass,  though  the  dam- 
ages be  susceptible  of  compensation,  or  otherwise  there  is  a  probability 
of  the  wrong  being  often  repeated,  and  the  plaintiff  thereby  involved  in 
a  multiplicity  of  suits." 

In  Id.  §  346,  it  is  said : 

"  Especially  will  relief  be  granted  where  trespass  of  cutting  timber 
amounts  to  the  destruction  of  the  essential  value  of  the  estate  in  the  char- 
acter in  which  it  has  been  enjoyed." 

Beach,  Mod.  Eq.  Jur.  §  22 : 

"While,  ordinarily,  courts  of  equity  will  not  interfere  merely  to  redress 
a  trespass,  they  will  do  so  where  the  trespass  is  a  continuing  one,  and  a 
multiplicity  of  suits  is  involved  in  the  legal  remedy." 

Id.  §  721 : 

"  Where  trespass  to  property  is  a  single  act,  and  is  temporary  in  its 
nature  and  effects,  so  that  the  legal  remedy  at  law  for  damages  is 
adequate,  equity  will  not  interfere;  but,  if  repeated  acts  of  trespass  are 
done  or  threatened,  although  each  of  these  acts,  taken  by  itself,  may  not 
be  destructive,  or  involve  irreparable  injury,  and  the  legal  remedy  may, 
therefore,  be  adequate  for  each  single  act  if  it  stood  alone,  the  entire 
-wrong  may  be  prevented  or  stopped  by  injunction.  .  .  .  Equity  will 
also  interfere  where  the  trespass  is  a  continuous  one,  and  the  legal 
remedy  would  involve  a  multiplicity  of  suits." 

The  contention  of  counsel  for  the  defendants  that  an  Injunction  to  pre- 
sent the  destruction  of  trees  is  confined  to  trespasses  which  destroy 
groves  kept  for  beautifying  the  owner's  home  or  lands,  or  to  shade  and 
ornamental  trees,  cannot  be  sustained.  The  modern  decisions  apply  the 
relief  by  way  of  injunction  to  coal,  iron,  and  other  mines,  and  to  growing 
timber  in  a  forest. 

Applying  the  doctrine  laid  down  in  the  authorities  above  quoted,  I 
find  no  difficulty  in  deciding  that  the  temporary  injunction  in  this  cause 
was  properly  awarded,  and  should  be  perpetuated.  The  trespass  com- 
mitted is  not  a  single  act,  temporary  in  its  nature,  and  such  as  might  be 
compensated  for  by  a  single  action  for  damages,  but  is  continuous  from 
day  to  day,  and,  if  permitted  to  continue,  will  ultimately  result  in  the 
entire  destruction  of  the  valuable  timber  admitted  to  belong  to  the  plain- 
tiff. The  damage  done  the  plaintiff  to-day  by  cutting  his  timber  is  the 
foundation  for  an  Action  of  damages.     The  measure  of  recovery,  on  the 


716  KING  V.  STUART  [paut  ik 

damages  laid  in  the  writ  in  an  action  brought  for  this  trespass  will  be  the 
injury  suffered  by  the  plaintiff  to  the  time  of  bringing  his  suit.  To- 
morrow the  defendant  commits  further  injury  by  cutting  other  timber, 
thus  giving  the  plaintiff"  another  cause  of  action,  and  requiring  him  to 
bring  another  suit,  if  he  is  to  be  remitted  to  his  remedy  at  law ;  for  it  is 
not  to  be  presumed  that  the  plaintiff  will  stand  idly  by  until  the  destruc- 
tion of  his  property  is  complete,  and,  by  his  acquiescence,  perhaps  en- 
danger his  right  of  recovery  of  damages  for  the  injury  done  him.  This 
statement  shows  the  multiplicity  of  suits  to  which  the  plaintiff  would 
have  to  resort  for  redress,  and  at  the  same  time  it  shows  the  futility  of 
the  plaintiff's  reinedy  at  law, — a  remedy  which  must  be  full,  complete, 
and  adequate.  The  remedy  by  an  action  at  law  for  damages  against  a 
trespasser  may  have  been  an  efficient  remedy  at  common  law.  But  at 
this  day,  when  property  of  all  kinds  readily  and  easily  changes  hands; 
when  a  man  who  is  solvent  to-day  may  be  insolvent  to-morrow;  when  the 
ready  means  of  transportation  quickly  conveys  personal  property  from 
one  section  of  the  country  to  another,  perhaps  out  of  the  jurisdiction  of 
the  courts  which  have  been  established  for  the  protection  of  property 
rights;  and  when  we  consider  the  long  delays  that  often  precede  a  trial,^ 
a  judgment,  and  execution, — ^we  see  how  entirely  inadequate  is  the 
remedy  at  law  to  secure  compensation  to  a  person  whose  property  is 
destroyed  by  a  trespasser.  So  far  from  his  remedy  at  law  being  full, 
complete,  and  adequate,  he  may  find  himself,  at  the  end  of  his  litigation, 
with  a  naked  execution  in  his  hands,  with  no  means  for  its  satisfaction. 
In  the  meantime  his  most  valuable  property  interests  have  been  destroyed. 
The  only  remaining  question  for  discussion  is:  Is  the  damage  that 
will  result  to  the  plaintiff  if  the  defendants  are  permitted  to  cut  and 
carry  away  his  valuable  timber  irreparable?  It  must  be  conceded  that 
every  man  has  a  right  to  enjoy  his  own  property  in  his  own  way;  that 
he  has  a  right  to  say  how  long  he  will  keep  it,  and  when  and  how  he 
Avill  di'spose  of  it.  In  the  case  of  a  heavily-timbered  tract  of  land,  like 
that  of  the  plaintiff,  it  is  his  right  to  say  what  part  of  it,  if  any,  or  what 
particular  trees  or  kinds  of  trees,  he  will  cut,  and  what  he  will  leave 
standing.  It  is  rlifficult  to  find  any  kind  of  property  that  will  suffer  more 
by  unrestrained  trespasses,  or  that  is  more  difficult  to  be  compensated  for 
in  damages  after  its  destruction  than  a  forest  of  growing  timber  such  as 
the  plaintiff's.  The  trees  are  increasing  in  size  and  value  from  year  to 
year;  the  younger  trees  are  constantly  reaching  nearer  the  size  at  which 
they  can  be  profitably  utilized,  and  are  constantly  rendering  the  estate 
more  valuable.  Coal  and  ore,  if  taken  from  mines,  may  be  measured  as 
to  quantity  and  value.  They  have  no  increasing  value  by  reason  of 
growth,  but  are  of  fixed  ciuaiitity.  Yet  the  removal  of  coal  and  ore  from 
Triiii's  is  Ik'IiI  to  work  irreparable  damage  to  the  property  of  the  owner 
of  the  mi  lie.  Tlu!  court  knows  of  no  measure  of  damages  that  could  be 
ad'iplcd  liv  a  jury  tliat  would  iiroporly  estimate  what  would  be  the  value 
of  a  l)od,v  of  tiiidicr  five  years  hence  that  is  destroyed  by  a  trespasser  to- 


CHAP.  I.]  SOLTAU  V.  DE  HELD  717 

day.  The  court  has  no  hesitancy  in  holdinfj^  that  the  destruction  of  the 
plaintiff's  timber  by  the  defendants,  as  they  threaten  to  do,  and  were 
doing  when  restrained,  would  result  in  irreparable  damage  to  the  prop- 
erty of  the  plaintiff,  and  that  the  plaintiff  is  entitled  to  the  protection 
of  a  court  of  equity. 


Section  3.    Nuisance. 


SOLTAU  V.  DE  HELD. 

In  Chancery,  before  Lord  Cranworth,  V.C,  1851. 

[2  Simons,  New  Series,  133.] 

The  plaintiff  occupied  a  messuage  as  a  private  dwelling  which  adjoined 
a  messuage  used  as  a  chapel  by  a  religious  order  called  "The  Eedemp- 
torist  Fathers."  The  plaintiff  alleged  that  the  ringing  of  the  chapel 
bells  at  the  times  and  in  the  manner  practiced  by  the  defendant  rendered 
the  occupation  of  the  plaintiff's  messuage  uncomfortable  and  amounted 
to  a  nuisance  and  prayed  for  an  injunction. 

The  Vice-Chancellor.^  The  next  ground  insisted  upon  in  support  of  the 
demurrer,  was  that  the  plaintiff  had  not  established  his  right  at  law. 
Now,  it  is  true  that  equity  will  only  interfere,  in  case  of  nuisance,  where 
the  thing  complained  of  is  a  nuisance  at  law :  there  is  no  such  thing  as  an 
equitable  nuisance;  but  it  is  no  ground  of  demurrer  that  the  matter  has 
not  been  tried  at  law.  It  very  often  is  a  ground  for  refusing  an  in- 
junction; but  it  is  not  ground  of  demurrer,  as  appears  from  Berkley 
V.  Ryder,  and  from  Lord  Cottenham's  judgment  in  Elmhirst  v.  Spencer, 
where  his  Lordship  expresses  himself  thus :  "The  plaintiff,  before  he  can 
ask  for  the  injunction,  must  prove  that  he  has  sustained  such  a  substantial 
injury,  by  the  acts  of  the  defendant,  as  would  have  entitled  him  to  a  ver- 
dict at  law,  in  an  action  for  damages."  And  then,  in  another  part  of  the 
same  judgment,  he  says :    "This  court  will  not  take  upon  itself  to  adjudi' 

'  The  balance  of  the  ease  has  been  omitted. 

"The  English  Court  of  Chancery  rarely  uses  this  process,  except  where 
the  right  is  first  established  at  law,  or  the  exigency  of  the  case  renders  it 
indispensable.  Thus,  in  Brown's  case,  in  2  Vesey  414,  a  motion  was  made 
for  an  injunction  to  stay  the  use  of  a  market,  and  Lord  Hardwicke  said  it 
was  a  most  extraordinary  attempt,  and  that  the  plaintiffs  had  several 
remedies  which  he  might  use.  He  said  it  would  cause  great  confusion  to 
bring  into  contempt  upon  the  injunction  all  persons  who  might  use  the 
market,  and  that  if  the  Court  ought  to  interpose  at  all,  it  would  be  after 
the  title  was  established  at  law.  So  he  observed,  in  another  case,  Amb.  209 
Anon.,  that  the  Court  granted  an  injunction  to  stay  the  working  of  a  colliery 


718  SOLTAU  V.  DE  HELD  [part  u. 

cate  upon  the  question  whether  this  is  a  nuisance  or  not:  that  must- be 
ascertained  in  a  Court  of  Law,  as  laid  down  by  Lord  Eldon  in  The 
Attorney-General  v.  Cleaver."  Now,  in  The  Attonery-General  v.  Cleaver, 
which  was  a  case  of  public  nuisance.  Lord  Eldon  directed  the  in- 
dictment, which  had  been  already  brought  and  was  pending,  to  be  prose- 
cuted, and  ordered  the  motion  to  stand  over  until  the  hearing  of  it. 
Therefore,  Lord  Cottenham,  in  that  case,  is  referring  to  this;  that 
you  cannot  ask  for  the  injunction  if  there  be  a  question  about  its  being 
a  nuisance  at  law.  But  I  do  not  know  where  it  is  laid  down  that  a  bill 
will  not  lie,  that  is,  that  it  is  ground  of  demurrer  because  tlje  action  has 
not  yet  been  brought.^  However,  whether  that  be  so  or  not,  the  plaintiff 
in  this  case  has  brought  his  action  at  law,  and  obtained  a  verdict. 

with  great  reluctance,  and  will  not  do  it,  except  where  there  is  a  breach 
of  an  express  covenant,  or  an  uncontroverted  mischief.  In  ?.  late  case  before 
Lord  Eldon,  Attorney-General  v.  Nichol,  16  Vesey  338,  on  an  information 
filed  to  restrain  the  defendant  from  obstructing  the  ancient  lights  of  an 
hospital  he  stated  that  the  foundation  of  this  jurisdiction  by  injunction  was 
that  head  of  mischief,  or  those  mischievous  consequences,  which  required  a 
power  to  prevent  as  well  as  to  remedy,  and  that  there  might  be  nuisances 
which  would  support  an  action,  but  which  would  not  support  an  injunction." 
Per  Chancellor  Kent  in  Attorney-General  v.  Utica  Insurance  Co.,  1817,  2  John- 
son's Ch.  371,  379. 

For  the  reasons  stated  in  the  next  principal  case,  equity  prefers  not  to 
grant  an  injunction  if  the  title  be  doubtful,  or  has  not  been  established  at  law. 
White  V.  Cohen,  1852,  1  Drew.  312;  but  equity  should  not  hesitate  if  the 
title  is  clear,  though  untried.  Turner  v.  Mirfield,  1865,  34  Beav.  390.  An 
interlocutory  injunction  should  be  granted  irrespective  of  title  if  necessary 
to  preserve  the  property.  Irwin  v.  Dixon,  1850,  9  How.  10,  citing  authorities. 
See  also  Tex.  &  Pac.  R.  R.  v.  Interstate  Trans.  Co.,  1894,  155  U.  S.  385. 

The  course  of  development  in  nuisance  is  similar  to  that  of  trespass,  and 
the  final   result  will  doubtless  be  the   same. 

'  "But  after  a  court  of  equity  has  entertained  a  bill,  and,  instead  of  sending 
the  case  to  be  tried  at  law,  has  itself  tried  the  questions  of  fact  involved,  and 
settled  the  legal  right  in  favor  of  the  complainant,  it  certainly  would  be  a 
result  much  to  be  deprecated,  if,  at  such  a  stage  of  the  controversy,  it  was  the 
law  that  the  chancellors  were  required  to  say  to  such  a  complainant,  'your 
right  is  clear;  if  you  sue  at  law  you  must  inevitably  recover,  and  after  several 
such  recoveries,  it  then  will  be  the  duty  of  this  court,  on  the  ground  of  avoid- 
ing a  multiplicity  of  suits,  to  enjoin  the  continuance  of  this  nuisance;  still,  you 
must  go  through  the  form  of  bringing  such  suits,  before  this  court  of  equity  can 
or  will  interfere.'  In  those  cases  in  which,  to  the  mind  of  the  Chancellor,  the 
rij.'lit,  (if  the  conqilainant  is  clear  ...  so  that  his  right  to  recover  damages 
at  law  is  indisputable,  and  the  Chancellor  has  considered  and  established 
his  right,  I  think  it  not  possible  that  any  authority  can  be  produced  which 
Hustains  the  doctrine  contended  for  by  the  counsel  of  the  defendant,"  i.e.,  that 
the  plaintiff  must  first  recover  at  law.  Per  Bkasley,  C.J.,  in  Iliggins  v.  Flem- 
ingU)n  Water  Co.,  1883,  36  N.  J.  Eq.  538,  544-5. 


CHAP.  I.]  DUKE  OF  GRAFTON  v.  HILLIARD  719 

DUKE  OF  GRAFTON  v.  HILLIARD. 

In  Chancery,  before  Lord  Chancellor  Talbot,  1736. 

[1  Amhler  (Blunt's  edition),  160,  note.'] 

Defendant  had  taken  a  building  lease  of  some  ground  behind  New 
Bond  Street  and  the  soil  there  being  proper  for  that  purpose  he  had  made 
a  very  large  quantity  of  bricks  and  was  going  to  burn  them  upon  the 
spot,  and  now  the  plaintiffs  brought  a  bill  suggesting  it  would  be  a  very 
great  nuisance,  that  the  smoke  would  make  the  air  very  unwholesome 
and  would  spoil  the  houses  and  furniture  of  plaintiffs  who  were  near 
neighbours,  and  upon  the  coming  in  of  defendant's  answer  they  moved 
upon  the  merits  for  an  injunction  to  hinder  the  defendants  from  burning 
the  bricks  so  near  the  plaintiff's  houses.  Defendant  coming  to  shew  cause 
insisted  that  as  he  had  a  property  in  the  soil  he  might  make  use  of  it 
to  what  purpose  he  pleased,  that  by  the  terms  of  his  agreement  he  was 
obliged  to  burn  the  bricks  before  such  a  particular  day,  which  if  an  in- 
junction was  granted  the  time  would  be  elapsed  before  the  cause  could 
be  heard,  and  so  the  defendant  would  quite  lose  the  opportunity  of  burn- 
ing the  bricks  he  had  already  made  to  the  value  of  at  least  £500  and 
interest,  and  insisted  that  this  was  no  nuisance,  but  if  it  was  the  parties 
injured  had  their  remedy  by  action  after  their  damages  sustained.  The 
Lord  Chancellor  recommended  it  to  them  to  try  it  immediately  in  a 
feigned  action  whether  it  would  be  a  nuisance  or  not,  but  defendants 
would  not  come  into  that,  and  therefore  the  Lord  Chancellor  declared 
that  it  was  too  much  for  him  to  determine,  upon  a  motion,  whether  this 
would  be  a  public  nuisance  or  not,  especially  seeing  how  many  brick 
kilns  are  now  standing  in  all  parts,  and  in  some  places  almost  in  the 
heart  of  some  of  the  principal  streets;  that  if  he  should  grant  an  injunc- 
tion and  it  should  come  out  on  the  hearing  that  it  was  no  nuisance,  he 
could  not  possibly  make  the  defendant  amends,  for  his  time  for  burning 
would  be  expired;  and  if  it  was  a  nuisance  defendant  would  be  sufficient- 
ly punished  by  actions  which  might  be  brought  against  him  by  every  one 
of  the  parties  that  suffered  any  damage ;  and  this  was  not  like  the  cases 
of  cutting  down  avenues  or  the  like,  which  if  done  no  possible  amends  or 
satisfaction  could  be  made  to  the  parties;  but  here  if  the  furniture  or 
goods  were  hurt  by  the  smoke,  the  sufferer  would  have  a  remedy  at 
law;  and  if  brick  kilns  were  general  nuisances  it  seemed  strange  that 
so  many  of  them  should  be  permitted  to  stand  in  the  several  quarters  of 
this  town.' 

*  On  the  question  of  brick  kilns,  see  the  valuable  and  sensible  case  of 
Phillips  V.  Lawrence  Vitrified  Brick  &  Tile  Co.,  1905,  82  Pac.  787;  S.  C. 
2  L.  R.  A.,  n.s.,  92,  with  note  collecting  authorities. 

This  case  is  considered  by  some  a  public,  as  distinct  from  a  private,  nuisance, 


no  BATNES  V.  BAKER  [part  u. 

COULSON  V.  WHITE. 
In  Chancery,  before  Lord  Chancellor  Hardwicke,  1743. 
[3  Athyns  21.] 
See  case  as  printed  ante,  p.  679. 


BAINES  V.  BAKER. 

In  Chancery,  before  Lord  Chancellor  Hardwicke,  1752. 

[3  Athyns,  750.'] 

A  motion  was  made  for  an  injunction  to  stay  the  building  of  a  house 
to  inoculate  for  the  smallpox  in  Cold  Bath  Fields. 

Lord  Chancellor: — 

The  application  is  to  be  considered  in  two  lights: 

First,  Whether  the  thing  complained  of  be  a  nuisance? 

Secondly,  If  a  nuisance,  whether  of  a  public  or  a  private  nature? 

Now  it  is  not  settled,  that  a  house  for  the  reception  of  inoculated  pa- 
tients is  a  nuisance. 

L^pon  an  indictment  of  that  kind  there  hath  been  lately  an  acquittal 
after  a  trial  at  Rye  in  the  County  of  Sussex. 

and  has  been  cited  as  an  authority  that  the  hxw  in  1730  permitted  a  private 
person  to  file  a  bill  to  abate  a  public  nuisance.  If  the  nuisance  be  public,  it 
is  such  a  precedent. 

Lord  Eldox,  however,  was  of  the  opinion  that  it  was  a  private  nuisance, 
and  that  it  therefore  was  not  such  an  authority.  In  The  Attorney-General  i\ 
Cleaver,  1811,  18  Ves.  211,  218,  the  following  cases  were  cited  before  Lord 
Eldon:  Coulson  v.  Wliite,  Ryder  v.  Bentham,  and  The  Attorney-General  v. 
Doughty;  upon  which  liis  Lordship  commented  as  follows: 

"Ryder  v.  Bentham  is  a  case  of  private  nuisance.  I  can  find  no  other 
cases  than  those  which  have  been  mentioned,  except  The  Dul<e  of  Grafton  v. 
Hilliard,  in  which  the  Attorney-General  was  not  the  phiintifl",  but  the  Duke 
of  (irafton  filed  the  bill  to  restrain  tlie  defendant  from  burning  brick  earth 
in  tlie  fields  close  to  Hanover  Square.  The  note  I  have  gives  me  no  infor- 
mation upon  the  doctrine  as  to  public  nuisance,  amounting  to  no  more  than 
this — that  the  Court  refused  the  injunction,  observing  that  the  manufacture 
of  bricks,  thou;,'h  neiir  Iho  liabitalions  of  men,  if  carried  on  for  the  purpose 
of    making   liabit:it  inns    for    tliom,    is    not   a    public    luiisance." 

'  I'veporlcd   also   in    1    Anililor,    iilunCs  edition,   158. 


CHAP.  I.]       ATTORNEY-GENERAL  v.  MANCHESTER  721 

The  notion  of  a  private  nuisance  is,  where  it  affects  only  particular 
I)ersons,  as  in  stopping  up  ancient  lights,  etc' 

It  then  becomes  a  public  nuisance  when  it  affects  many  persons, 
though  it  may  likewise  at  the  same  time  be  of  a  private  nature  too,  as 
in  the  case  of  a  hole  in  the  King's  highway,  etc. 

For  it  is  not  confined  to  the  particular  property  of  the  plaintiffs,  be- 
cause it  is  in  the  nature  of  terror  to  diffuse  itself  in  a  very  extensive 
manner. 

But  bills  to  restrain  nuisances  must  extend  to  such  only  as  are  nui- 
sances at  law. 

And  the  fears  of  mankind,  though  they  may  be  reasonable  ones,  will 
not  create  a  nuisance. 

Had  it  been  a  nuisance,  the  proper  method  of  proceeding  would  have 
been  by  information,  in  the  name  of  the  Attorney-General. 

Upon  the  circumstances  of  this  case,  I  am  of  opinion  I  should  not 
be  justified  in  granting  the  injunction  which  is  now  prayed,  and  therefore 
must  deny  the  motion. 


ATTORNEY-GENERAL  v.  CORPORATION  OE  MANCHESTER. 
In  the  Supreme  Court  of  Judicature,  Chancery  Division,  1893. 

[Law  Reports   (1893),  2  Chancery  Division,  87.] 

The  defendants  proposed  to  establish  a  smallpox  hospital  on  land  of 
their  own  in  an  adjoining  district,  within  240  yards  of  two  public  roads, 
within  90  yards  of  a  much  used  part  of  a  cemetery,  and  within  256  yards 
of  the  nearest  residence;  the  plaintiffs  contended  that  what  the  defen- 
dants proposed  to  do  amounted  to  a  public  nuisance,  as  being  dangerous 
to  the  health  of  the  neighborhood,  and  applied  for  an  injunction : — ° 

CiiiTTY,  J. — This  is  the  third  motion  which  has  been  made  against  the 
Corporation  of  Manchester  in  respect  of  the  hospital  they  propose  to  open 
in  the  district  of  the  Withington  Local  Board  for  the  reception  of  small- 
pox patients.  The  present  action  is  brought  by  the  Attorney-General,  not 
€X  officio,  but  at  the  instance  of  relators,  and  also  by  private  persons  as 
plaintiffs;  but  the  case  of  the  private  plaintiffs  was  not  argued  at  the 

*  For  the  doctrine  of  ancient  lights  and  their  abatement  as  a  nuisance — a 
doctrine  not  recognized  in  this  coimtry  in  the  absence  of  a  specific  covenant — 
see,  East  India  Co.  v.  Vincent,  1740,  2  Atk.  83;  Morris  v.  Berkeley,  1752, 
2  Ves.  Sr.  453;  Fishmonger  Co.  v.  East  India  House,  1752,  1  Dick.  165; 
Ryder  v.  Bentham,  1755,  1  Dick.  277;  S.  C,  1755,  1  Ves.  Sr.  543;  Attorney- 
General  V.  Nichol,   1809,   16  Ves.  340. 

-  This  statement  of  facts  is  taken  from  the  headnote.  The  arguments  of 
counsel  have  been  omitted. 


722  ATTORNEY-GENERAL  v.  MANCHESTER       [part  iu 

bar.  The  foundation  of  the  motion  is  an  apprehended  public  nuisance, 
the  nuisance  being,  not  an  actual  or  existing  nuisance,  but  a  future  nui- 
sance, which,  it  is  alleged,  will  arise  if  the  hospital  is  opened.  The  action,, 
then,  is  what  is  technically  known  as  a  quia  timet  action.  The  question 
as  to  the  principle  on  which  the  court  proceeds  in  granting  or  refusing- 
an  injunction  in  such  actions  has  been  the  subject  of  numerous  decisions, 
among  which  are  Crowder  v.  Tinkler,  19  Ves.  617 ;  Earl  of  Ripon  v. 
Hobart,  3  My.  &  K.  169,  176 ;  Haines  v.  Taylor,  2  Ph.  209 ;  Hepburn  v. 
Lordan,  2  H.  &  M.  345 ;  Attorney- General  v.  Mayor  of  Kingston,  34  L.  J. 
Ch.  481;  13  W.  R.  888,  891;  Salvin  v.  North  Brancepeth  Coal  Com- 
pany, Law  Rep.  9  Ch.  705 ;  Fletcher  v.  Bealey,  28  Ch.  D.  688.  The  prin- 
ciple appears  to  be  the  same  whether  the  alleged  future  nuisance  is  pub- 
lic or  private.  In  one  of  the  cases  to  which  I  have  referred,  the  alleged 
nuisance  was  a  public  nuisance;  in  others  a  private  nuisance.  In  some,, 
acts  had  been  done  which,  it  was  alleged,  would  result  in  future  mischief 
or  injury,  but  which  had  not  already  resulted  in  injury  or  substantial 
damage;  in  others,  there  was  mere  threat  or  intention.  But  in  regard 
to  all  such  cases  the  principle  is  the  same.  Where  it  is  certain  that 
the  injury  will  arise,  the  court  will  at  once  interfere  by  injunction ; 
as,  for  instance,  in  the  case  of  a  threat  to  cut  a  permanent  ditch  across 
a  public  highway.  But  the  court  does  not  require  absolute  certainty  be- 
fore it  intervenes;  something  less  will  suffice  (see  Lord  Brouhgam's  judg- 
ment in  Earl  of  Ripon  v.  Hobart).  In  Crowder  v.  Tinkler  (the  gunpow- 
der case).  Lord  Eldon,  who  granted  the  injunction,  spoke  of  "extreme 
probability  of  irreparable  injury,"  19  Ves.  622.  In  Attorney-General  v. 
Mayor  of  Kingston,  Vice-Chancellor  Wood,  who  refused  the  injunction,, 
considered  the  question  to  be  whether  there  was  evidence  of  an  actual 
nuisance  committed,  or  "evidence  of  the  extreme  probability  of  a  nui- 
.sance  if*  that  which  was  being  done  was  allowed  to  continue."  In  Fleet 
V.  Metropolitan  Asylums  Board,  1  Times  L.  R.  80;  2  Times  L.  R.  361, 
362,  the  Darenth  Hospital  Camp  case,  where  the  hospital  was  in  actual 
operation,  the  court  refused  the  injunction.  Lord  Justice  Cotton,  in  his- 
judgment,  laying  it  down  that  "the  plaintiffs  must  take  out  that  there  was 
real  danger,  otherwise,  however  much  they  might  feel  the  hospital  to  be 
an  annoyance,  they  could  not  get  an  injunction."  The  principle  which 
I  think  may  be  properly  and  safely  extracted  from  the  quia  timet  au- 
thorities is,  that  the  plaintiff  must  shew  a  strong  case  of  probability  that 
the  apprehended  mischief  will,  in  fact,  arise.  Before  stating  the  facts, 
I  will  make  a  few  observations  in  regard  to  public  nuisance  at  common 
law.  The  plaintiffs'  case  is  that  the  defendants  are  proposing  to  do  acts, 
which,  if  done,  will  constitute  a  common  or  public  nuisance,  and  as  such 
will  consritute  an  indictable  offence.  A  great  variety  of  instances  of  the 
different  kinds  of  public  nuisances  will  be  found  collected  in  Russell  on 
Crimes,  5th  ed,  vol.  i.  p.  418,  et  seq,  and  in  Stephen's  Criminal  Digest, 
3d  ed.  p.  126,  including  Rex  v.  Vantandillo,  4  M.  &  S.  73,  and  Rex  v.  Bur- 
nett, ibid.  272,  both  smallpox  cases,  and  cited  at  the  bar  in  argument. 


CHAP.  I.]       ATTORNEY-GENERAL  v.  MANCHESTER  723 

before  me.  Those  two  cases  shew  that,  although  no  actual  mischief  had 
arisen  from  the  acts  done,  there  may  be  an  indictable  oflFence  if  there  is 
danger  to  the  public  health.  In  Reg.  v.  Lister,  the  naptha  use.  Dears 
&  B.  C.  C.  209,  the  keeping  of  large  quantities  of  a  highly  inflammable 
fluid  near  a  highway  to  the  danger  of  the  public  was  held  to  be  an  in- 
dictable offence,  though  no  fire  had  taken  place.  In  the  Darenth  case 
Sir  F.  Fry  appears  to  have  adopted,  as  applicable  in  such  cases.  Chief 
Justice  CocKBURJs's  statement  of  the  law,  that  it  must  be  shewn  that 
there  is  "a  well-founded  and  reasonable  apprehension  of  danger."  The 
apprehended  future  danger  in  the  present  case  is  danger  to  the  public 
health.  Now,  undoubtedly,  there  are  many  cases  of  public  nuisance — by 
interference  with  an  unquestionable  right  of  the  public,  such,  for  in- 
stance, as  the  permanent  obstruction  of  a  highway — where  the  court  did 
decline  at  once  to  permit  evidence  to  be  given  of  any  supposed  public 
benefit  arising  from  the  wrongful  act  complained  of,  and  would  refuse  to 
balance  the  good  alleged  to  accrue  to  some  portions  of  the  public  against 
the  mischief  to  the  public  in  general.  But  in  the  case  where  the  health 
of  the  Queen's  subjects  in  general  is  concerned,  it  may  possibly  be  a 
question  whether,  if  the  evidence  shews  that  the  maintenance  of  a  small- 
pox hospital  is,  on  the  whole,  balancing  the  good  against  the  evil,  more 
beneficial  to  the  health  of  the  public  at  large,  or  to  that  portion  of  the 
public  that  inhabits  or  freqvients  the  neighborhood,  than  the  leaving  of 
the  persons  suffering  from  the  disease  scattered  in  their  own  homes,  some 
weight  might  not  be  properly  allowed  to  this  circumstance.  If  Lord 
Hardwicke  is  rightly  reported  in  the  case  of  Coldbath  Fields  Smallpox 
Hospital — Baines  v.  Baker,  Amb.  18,  he  appears  to  have  entertained  some 
such  question  when  he  stated  his  opinion  that  the  hospital  was  "a  charity 
like  to  prove  of  great  advantage  to  mankind."  But,  although  I  throw  out 
these  observations  as  being  possibly  worthy  of  future  consideration,  I 
state  expressly  that  they  do  not  form  any  ground  of  my  decision  on  this 
motion.    I  now  proceed  to  deal  shortly  with  the  facts.^ 

The  conclusion  at  which  I  have  arrived  is  that  the  plaintiffs  have  failed 
on  this  motion  to  make  out  that  there  is  a  probability,  must  less  that 
there  is  a  high  degree  of  probability,  that  the  apprehended  danger  will  in 
fact  ensue.  In  parting  with  the  case  I  think  it  right  to  say  that  the 
court  ought  to  exercise  great  caution  before  it  accepts  any  general  propo- 
sition of  fact  which  might  tend  to  the  closing  of  many  a  well-ordered 
smallpox  hospital  in  the  country.  The  necessity  for  caution  is  all  the 
greater  because  the  doctrine  of  coming  to  a  nuisance  has  long  since 
been  excluded.    I,  for  the  reasons  given,  refuse  the  injunction.^ 

*  A  part  of  the  opinion  discussing  the  facts  has  been  omitted. 

^  "Inoculation  was,  it  is  well  known,  introduced  into  this  country  in  the 
early  part  of  the  eighteenth  century.  It  consisted  in  artificially  communi- 
cating the  smallpox  in  such  a  manner  that  the  patient  took  it  in  a  very  mild 
form ;  but  was  as  much  a  source  of  infection  to  others  as  if  the  disease 
had   been   taken   in   the   natural    manner.     The    introduction   of   the   practice 


724  ATTORNEY-GENERAL  v.   FITZSIMMONS         [part  ir. 


ATTORNEY-GENERAL  v.  FITZSIMMONS. 

In  thk  Pulaski  County  Court  of  Arkansas,  1896. 

[35  American  Law  Register  100.] 

Martin,  C— Under  the  act  of  1885  and  sees.  2380  of  S.  &  H.  Dig.,  I  be- 
lieve it  is  conceded  that  this  court  might  have  put  Corbett  and  Fitzsim- 
mons  under  bonds  to  keep  the  peace,  in  sums  not  exceeding  $5,000;  and 
from  this,  it  is  argued  that  no  jurisdiction  exists  to  do  more.  The  section 
of  the  digest  last  referred  to,  applies  to  officers  of  courts  of  law  particu- 
larly, though  I  doubt  not  this  court  also  has  the  power  to  enforce  it  in  a 
proper  case.    But  is  that  remedy  in  a  court  of  equity  exclusive. 

The  bill  alleges,  and  the  demurrer  confesses,  that  a  bond  of  $5,000,  the 
maximum  bond  which,  under  the  statute,  could  be  required,  would  not 
prevent  the  fight,  and  would  not  prevent  the  other  acts  complained  of  in 
the  bill,  among  them  the  public  nuisance,  which  is  minutely  described. 
It  follows,  then,  as  certainly  as  night  the  day,  that  unless  the  Chancellor 
could  apply  some  other  remedy  than  that  of  a  mere  bond  to  keep  the 

was  vehemently  opposed.  In  1752  a  case  came  before  Lord  Hardwicke,  which 
is  reported  in  two  reports.  Baines  v.  Baker,  1  Amb.  158;  S.  C.  Anon.  3  Atk. 
750.  I  collect  from  the  two  reports  that  it  was  proposed  by  private  persons 
to  erect  a  building  in  Coldbath  Fields  to  be  used  as  a  hospital  for  the 
reception  of  persons  ill  of  the  smallpox,  and  also  for  the  reception  of  persons 
who  were  there  to  be  inoculated.  The  plaintiff  was,  it  appears,  owner  of 
building  land  in  the  neighborhood,  and  gave  evidence  (of  something  which 
seems  very  probable)  that  the  fears  of  infection  from  the  proposed  hospital 
greatly  deterioiated  the  letting  value  of  his  property.  Lord  Hardwicke 
refused  to  grant  an  injunction,  saying,  what  is  undoubtedly  law,  that  loss 
arising  from  the  fears  of  mankind,  though  in  themselves  reasonable,  would 
not  create  a  nuisance  at  law,  and  that  before  he  could  grant  an  injunction 
he  must  be  satisfied  that  what  was  proposed  to  be  done  would  be  a  legal 
nuisance  affecting  the  plaintiff's  private  rights.  He  is  reported  in  Ambler 
to  have  said  that  he  thought  'such  a  charity  was  like  to  prove  of  great 
advantage  to  mankind;  such  an  hospital  must  not  be  far  from  a  town, 
because  those  that  are  attacked  with  that  disorder  in  a  natural  way  may  not 
be  in  a  condition  to  be  carried  far.'  This  I  think  very  true,  and  it  is  to  be 
borne  in  mind  wlien  construing  the  act  now  in  question.  Lord  Hardwicke 
seems  to  have  decided  that  the  plaintiff  made  out  no  case  of  a  nuisance  to 
liis  private  rights;  and  that  even  if  tlie  maintenance  of  a  place  for  the 
artificial  j)ropagation  of  smallpox  was  indictable,  which  seems  not  to  have 
licen  I^ord  IIahdvvickk's  ojjinion,  that  was  a  public  and  not  a  private 
nuisance. 

'In  Hex  V.  Button,  4  l^urr.  2110,  in  1767,  it  was  held  that  an  indictment 
for  maintaining  a  house  for  inoculating  for  the  smallpox  was  not  so  plainly 
bat!  as  to  he  (|ii:islic(l   on   motion.     This   is  all  that  appears  from  the  report, 

'Portions  of  llic  opiiiioi)  arc  omitted. 


CHAP.  I.]         ATTOKNEY-GENEKAL  v.  FITZSIMMONS  726 

peace,  limited  as  it  is  to  the  sum  of  $5,000,  that  the  power  conferred, 
and  the  duty  enjoined  upon  him,  wouhl  fall  far  short  of  enahling  him  to 
adequately  maintain  the  good  order  of  the  State  government,  whose  peace 
he  is  to  conserve. 

It  were  the  rankest  folly,  the  sheerest  nonsense,  to  direct  an  officer  to 
conserve  the  peace  throughout  the  State,  and  then  deny  him  the  neces- 
sary jurisdiction  and  power  to  do  so  wherever  an  emergency  shovdd  arise 
which  demands  the  exercise  of  such  powers  as  may  be  necessary  to 
accomplish  the  purpose.  As  I  will  show  before  I  conclude,  courts  of 
equity  have  exercised  jurisdiction  by  injunction  to  prevent  the  commi» 
sion  of  certain  crimes,  indeed,  they  should  of  any  crime  involving  the 
commission  or  maintenance  of  a  public  nuisance,  as  does  the  one  charged 
in  the  bill  in  this  case.  And  why  not?  The  very  objects  of  government 
are  to  restrain  men's  passions,  to  bridle  improper  and  illegal  impulses, 
to  protect  them  in  their  civil  and  political  rights  of  life,  limb  and 
property,  to  subserve  the  general  welfare,  and  to  induce,  or  make 
them,  if  necessary,  respect  the  rights  of  others.  'Tis  true,  a  court  of 
equity,  under  our  system  of  laws,  cannot  administer  punitive  justice,  ex- 

but  from  what  Lord  Ellenborough  says  in  Rex  v.  Vantandillo,  4  Mau.  &  S. 
76,  it  would  appear  that  there  had  been  much  more  discussion  at  the  time. 

"In  Rex  V.  Burnett,  4  M.  &  S.  272,  in  1815,  it  was  decided  that  though 
inoculation  for  the  smallpox  may  be  practiced  lawfully  and  innocently,  yet  it 
must  be  under  such  guards  as  not  to  endanger  the  public  health  by  communi- 
cating this  infectious  disease.  And  I  also  think  that,  by  necessary  inference, 
it  follows  that  to  gather  together  in  one  spot  patients  suffering  from  infectious 
disease  is  lawful,  but  it  must  be  under  such  guards  as  not  to  endanger  the 
public  health  by  communicating  this  infectious  disease ;  and,  as  it  seems  to 
me,  so  as  not  to  produce  injury  to  the  rights  of  the  owners  of  adjoiiTing 
property  by  producing  a  nuisance   to  it. 

"If  this  be  the  correct  view  of  the  law,  it  is  obvious  that,  however  desirable 
it  might  be  to  erect  and  maintain  asylums  for  the  reception  of  the  sick  poor, 
sick  of  infectious  disorders,  it  could  not  be  done  by  any  parochial  authorities 
imless  the  authority  of  Parliament  was  obtained  for  raising  funds  for  the' 
purpose,  and  authorizing  a  public  body  to  obtain  a  site  for  the  asylum.  And 
the  Metropolitan  Poor  Act,  1867,  certainly  created  such  a  body  and  gave 
it  powers  to  raise  money,  and  without  farther  powers  this  body  could  erect 
an  asylum,  provided  it  was  done  in  such  a  manner  as  neither  to  endanger 
the  public  health,  nor  to  form  a  nuisance  to  private  property.  It  is,  for  the 
reason  given  by  Lord  Hardwicke,  necessary  that  the  site  for  such  an  asylum 
should  b€  not  far  from  the  places  where  the  patients  fall  sick,  and  conse- 
quently, in  the  case  of  the  metropolis,  in  an  inhabited  district."  Per  Lord 
Blackburn  in  Metropolitan  Asylum  District  v.  Hill,  1880,  L.  R.  6  App.  Cas. 
206-207. 

"The  other  case  which  has  been  referred  to,  Baines  v.  Baker,  Amb.  158, 
was  an  application  to  restrain  the  erection  of  a  smallpox  hospital  \\hich  had 
not  yet  been  built.  The  erection  could  only  be  restrained  if  a  smallpox 
hospital,  when  erectpd,  must  of  necessity  be  a  nuisance,  and  Lord  Hard- 
wicKE  only  decided  that  he  could  not  say  beforehand  that  it  must  of  necessity 


726  ATTOENEY-GENEEAL  v.  FITZSIMMONS         [part  ii. 

cept  for  contempts ;  but  it  may  preventive  justice  in  proper  cases ;  and  I 
fee]  that  if  there  were  more  preventive  justice  administered,  a  vast  deal 
of  misery  would  be  spared  to  the  innocent.  Many  a  sorrowful  wife  and 
innocent,  helpless  child  has  been  made  to  suffer  the  want  of  absolute 
necessaries  of  life,  because  of  the  father's  condemnation  to  a  sentence  of 
punitive  justice — under  a  jail  or  penitentiary  sentence — but  never,  in 
the  very  nature  of  things,  has  one,  and  one  never  can,  on  account  of  the 
administration  of  preventive  justice.  In  most  cases,  per  force  of  circum- 
stances, preventive  justice  cannot  be  enforced;  because,  first,  the  con- 
templated crime  is  not  known ;  and  if  it  were,  it  can  generally  be 
prevented  by  the  statutory  peace  bond  proceeding  in  a  court  of  law.  But 
there  are  exceptions  to  the  rule;  and  the  exception  proves  the  rule. 
Courts  of  equity  will  not,  generally,  interfere  by  injunction  to  prevent 
the  commission  of  ordinary  crimes,  and  this  is  upon  the  principle  that  an 
adequate  remedy  exists  at  law.  But  what  have  we  here  as  shown  by  the 
complaint  and  confessed  by  the  demurrer?  A  comparatively  small  part 
cf  the  State  in  league  with  a  few  prize  fighters  and  their  trainers,  bonded 
together  in  a  collusive  determination  to  openly  violate  the  statutes  of  the 

be  a  public  nuisance.  If  when  it  had  been  erected  it  had  been  so  conducted 
as  to  prove  a  public  nuisance,  there  Avould  have  been  a  very  different  question, 
viz.,  that  which  arose  in  the  case  of  the  Hampstead  Hospital. 

"In  the  present  case  all  that  it  is  necessary  to  decide  is  this,  that  this 
act  does  not  authorize  urinals  to  be  erected  so  as  to  be  a  nuisance,  and  we 
agree  with  the  decision  of  the  Vice-Chancellor  that  the  maintenance  and  use 
of  this  urinal  is  a  nuisance."  Per  Cotton,  L.J.,  in  Vernon  v.  Vestry  of 
St.  James,  Westminster,  1880,  L.  R.,   16  Chancery  Division  470. 

"It  is  doubtless  attributed  to  Lord  Hardwicke  that  he  once  said,  'The  fears 
of  mankind,  though  they  may  be  reasonable  ones,  will  not  create  a  nuisance.* 
But  if  Lord  Hardwicke  ever  really  did  say  so,  it  is  quite  clear  that  that  is 
not  now  the  law,  if  the  fears  are  assumed  to  be  reasonable.  The  existence  of 
a  large  collection  of  explosive  matter  in  the  vicinity  of  a  town  has  been  held 
to  be  a  nuisance.    See  Reg.  v.  Lister,  Dears  &  B.  C.  C.  209;  26  L.  J.,  M.  C,  196. 

"The  good  sense  of  mankind  recognizes  the  fact  that  occasional  negligence 
is  one  of  the  ordinary  incidents  of  human  life,  and  the  common  law,  which 
embodies  the  common  sense  of  the  nation,  proceeds  upon  common  sense 
assumptions.  I  do  not  think  it  is  any  answer  to  tell  people  who  complain 
of  the  establishment  of  sewage  works  in  their  neighborhood  that  if  and  when 
the  sewage  works  became  a  nuisance,  in  the  real  and  proper  sense  of  that 
word,  such  works  can  be  restrained  by  injunction.  Land  is  certainly  more 
marketable  when  it  is  free  from  works  of  that  character  than  when  such 
works  are  established,  although  the  neighbors  may  have  the  ordinary  right 
of  citizens  to  engage  in  litigation  against  such  works  when  they  become  a 
nuisance. 

"I  have,  tiiereforo,  come  to  the  conclusion  that  it  was  open  to  the  jury 
to  find  that  the  a|)pellant's  land  not  taken  by  the  local  board  would  be 
injuriously  iin'('<t(Ml  by  the  construction  and  use  of  the  sewage  works."  Per 
J>ord  llAi.suritY,  !..('.,  in  Cowper  v.  Local  Board  of  Acton,  1889,  L.  R. 
14  Ai)p.   Cas.    ).").•'.,    160-1. 


CHAP.  I.]         ATTORNEY-GENEEAL  v.  FITZSIMMONS  727 

State,  flinging  defiance  in  its  face,  and  saying  to  the  constituted  authori- 
ties of  the  State  government,  "we  will  be  protected  by  local  authorities, 
and  you  are  powerless  to  vindicate  the  majesty  of  your  laws,  to  preserve 
the  good  name  of  the  State,  to  uphold  its  institutions,  or  to  conserve  its 
peace." 

The  Governor  has  run  the  gamut  of  executive  functions  to  find  legal 
power  or  authority,  lodged  in  him  as  the  chief  executive,  to  lay  hold  of  the 
threatened  infraction  of  the  statutes,  and  by  reason  of  the  restrictive  con- 
stitutional limitations  upon  his  power,  he  could  legally  do  nothing,  with- 
out the  aid  of  some  court,  to  accomplish  a  proper  conservation  of  the 
peace  in  that  part  of  Arkansas'  domain.  The  Attorney-General  of  the 
State  for  a  few  days  preceding  the  day  fixed  for  the  fight  was  in  the  city 
of  Hot  Springs — on  the  ground — and  on  his  return  filed  the  bill  in  this 
•case,  which  was  by  him  duly  verified. 

He  says  in  the  bill  of  complaint  "  that  in  open  defiance  of  the  laws  of 
the  State,  of  its  peace  and  good  order,  of  its  good  name  and  general  wel- 
fare, all  the  defendants  herein,  and  many  others  whose  names  are  to  the 
plaintiff  unknown,  undertook  such  measures  as  were  deemed  necessary 
by  them  to  bring  about  said  fight  in  said  Garland  County,  in  or  near  said 
city  of  Hot  Springs.  They  publicly,  boldly  and  defiantly  proclaimed 
that  said  fight  would  occur.  They  advertised  the  fact  throughout  the 
entire  country  that  the  fight  would  occur  for  the  championship  of  the 
world,  and  in  every  way  and  by  all  means,  sought  to  induce  persons 
to  come  from  all  over  the  land  to  witness  the  fight,  and  openly  stated 
that  the  attendance  would  be  some  fifty  thousand  people;  that  accom- 
modations would  be  made  to  seat  that  number  to  view  the  fight." 

He  also  avers  in  the  bill  "that  if  said  fight  occurs,  it  will  seriously 
endanger  the  lives  of  the  participants  who  are  gifted  with  extraordinary 
strength  and  skill,  fight  for  a  very  large  stake,  as  well  as  for  the  cham- 
pionship of  the  world,  and  entertain  feelings  of  intense  hostility  towards 
each  other.  That  it  will  bring  together  from  all  parts  of  the  country  a 
lawless,  violent,  turbulent  and  dangerous  assemblage  of  many  thousand 
of  persons,  and  will  cause  riots  and  affrays,  seriously  endangering  the 
safety  of  many  others,  to  the  prejudice  of  the  good  name  and  general 
welfare  of  the  State.  That  the  assemblage  and  fight  contemplated  would 
constitute  a  public  nuisance,  which  would  endanger  not  only  the  lives 
of  persons  not  engaged  or  participating  in  it,  but  property  generally; 
and  if  the  Governor  of  the  State  exercises  his  power  to  call  out  the 
militia,  its  efforts  to  prevent  the  fight  will  be  resisted  and  many  persons 
will  be  injured,  perhaps  killed,  as  defendants,  their  aiders  and  abettors, 
now  declare." 

However,  we  need  not  resort  to  any  consideration  of  a  public  necessity 
to  maintain  the  laws  and  dignity  of  the  State,  nor  to  that  principle  of 
equity  jurisprudence,  that  courts  of  chancery  will  intervene  to  prevent  a 
multiplicity  of  suits,  to  sustain  the  jurisdiction  of  the  court  over  the  sub- 
ject-matter of  this  action.     While  conceding  that  courts  of  equity  have 


728  ATTORNEY-GENERAL  v.  FITZSIMMONS         [part  ii. 

no  power  to  enforce  the  criminal  statutes  of  the  State,  and  no  jurisdiction 
to  enjoin  the  commission  of  crimes  ordinarily,  yet  where  the  crime  arises 
from,  or  is  a  constituent  part  of  a  public  nuisance,  they  should  not  fail  to 
exercise  their  extraordinary  powers  to  abate  the  nuisance ;  and  in  doing 
this,  they  may,  by  proper  orders,  prevent  the  commission  of  the  crime. 
Vice-Chancellor  Shadwell  so  thought  when  he  delivered  his  opinion  in 
Attorney-General  v.  R.  Co.,  4  De  G.  &  S.  75. 

The  case  of  Columbia  Athletic  Club  v.  State,  28  L.  R.  A.  727,  from 
which  a  number  of  quotations  have  been  made,  and  in  which  several  cases 
cited  in  this  opinion  are  used,  was  one  instituted  to  enjoin  an  athletic 
association  from  "pulling  off"  an  industriously  advertised  prize  fight, 
and  to  put  the  property  of  the  association  in  the  hands  of  a  receiver.  The 
Chief  Justice,  who  delivered  the  opinion  of  the  court,  affirmed  the  judg- 
ment of  the  lower  court  in  making  the  injunction  perpetual,  and  going  a 
step  farther  than  I  have  gone  in  this  case,  by  appointing  a  receiver  to 
take  charge  of  the  club  house  and  grounds  of  the  association,  in  order  to 
prevent  the  fighting  of  the  pugilists,  says :  "  It  would  be  monstrous  to 
adjudge  that,  because  acts  constituting  the  abuse  of  corporate  privileges 
are  crimes,  therefore  the  corporation  may  persist  in  doing  them.  This 
would  be  to  encourage  corporations  to  perpetuate  the  gravest  abuses, 
since,  under  such  a  rule,  the  graver  the  abuse  the  less  the  power  of  the 
civil  branch  of  our  law.  It  comes  with  an  ill  grace  from  a  corporation  to 
aver  that,  because  the  abuse  of  its  corporate  privileges  consist  of  com- 
mitting crime,  civil  remedies  are  unavailable.  It  would  outrage  common 
sense  unspeakably  to  give  ear  to  a  corporation  defending  itself  against  a 
civil  preceeding  by  asserting  its  own  infamy  and  insisting  that  redress 
can  only  be  had  under  the  laws  punishing  the  crimes."  A  like  conclu- 
sion was  reached  in  Massachusetts,  in  the  case  of  Carleton  v.  Rugg,  149 
Mass.  550,  5  L.  R.  A.  193,  the  language  of  the  court  being:  "  The  fact 
that  keeping  a  nuisance  is  a  crime  does  not  deprive  a  court  of  equity  of 
the  power  to  abate  the  nuisance."  See,  also,  Morawetz  Priv.  Corp.,  par. 
1043.     .     .     . 

"  Judge  Brkwer,  in  re  Petition  of  Debs,  158  U.  S.  564,  for  the 
Supreme  Court  of  the  United  States,  says:  The  jurisdiction  of  the  court 
of  chancery  with  regard  to  public  nuisances  is  founded  on  the  irreparable 
damage  to  individuals,  or  the  great  public  injury  which  is  likely  to 
ensue.  3  Daniell's  Ch.  Pr.  3d  ed.,  Perkin's,  1740.  Indeed,  it  may  be 
affirmed  that  in  no  well-considered  case  has  the  power  of  the  court  of 
ccjuity  to  interfere  by  injunction  in  cases  of  public  nuisance  been  denied, 
the  only  denial  ever  being  that  of  a  necessity  for  the  exercise  of  that  juris- 
diction under  the  circumstances  of  that  particular  case.  Story's  Eq. 
Jur.  par.  921,  923,  924;  Pomeroy's  Eq.  Jur.  par.  1349;  High  on  Injunc- 
tions, par.  745  and  1554;  2  Daniell's  Ch.  PI.  and  Pr.  4th  ed.,  p.  1G3G." 

That  the  complainant  filed  by  the  Attorney-General  in  this  case  alleges 
facts  which  fonstitute  a  menace  to  the  lives  of  citizens,  with  destruction 
of  their  proix-rty,  the  disturbance  of  the  peace  and  tranquility  of  the 


CHAP.  I.]       COOSAW  MINING  CO.  v.  SOUTH  CAROLINA  729 

community,  the  general  welfare  and  reputation  of  the  State,  and  a  great 
public  nuisance,  calling  for  the  exercise  of  all  the  legitimate  powers  of 
this  court  to  abate  and  prevent  the  consummation  of  the  threats  alleged 
in  the  bill,  I  think,  is  not  open  to  question.     .     .     . 

Recurring  to  the  remedy,  I  find  that  in  cases  of  public  nuisances,  it 
must  be  either  preventive  or  punitive,  the  one  accomplished  by  injunc- 
tion, and  the  other  by  an  indictment  on  behalf  of  the  public. 

The  most  efficient,  humane  and  flexible  remedy  is  that  of  injunction. 
Under  this  form  the  court  can  prevent  that  from  being  done  which,  if 
done,  would  cause  a  nuisance;  it  can  command  an  observance  of  peace 
before  it  is  broken;  it  can  save  suffering,  and  sometimes  disgrace,  to 
those  who  are  in  no  way  responsible;  in  some  instances,  and  I  believe 
this  case  presents  one  of  them,  it  can  secure  an  obedience  to  the  laws  of 
the  country  that  a  court  of  law,  pursuing  the  other  remedy,  could  not  do. 

My  conclusions  are : 

(1)  That  jurisdiction  over  the  persons  of  such  of  the  defendants  as 
voluntarily  came  into  Pulaski  County,  and  were  summoned  here,  is  given 
by  the  statute  quoted  in  this  opinion ; 

(2)  That  the  complaint  charges  such  a  state  of  facts  as  constitute  a 
public  nuisance  in  the  eyes  of  the  laws  of  this  State; 

(3)  That  the  demurrer  admits  the  material  allegations  of  the  com- 
plaint to  be  true; 

(4)  That  a  court  of  equity  has  ample  jurisdiction  to  prevent,  or 
abate  by  injunction,  a  public  nuisance,  in  a  civil  action  instituted  by  the 
sovereign  on  the  relation  of  her  Attorney-General ; 

(5)  That  the  power  to  prevent  or  abate  the  nuisance  involves  the 
jurisdiction  to  make  all  orders  that  may  be  necessary,  and  that  of  a  pre- 
ventative character,  to  effectuate  the  orders  for  prevention  or  abatement ; 
and  this  involves  the  jurisdiction  to  enjoin  the  commission  of  a  crime 
which  inheres  in,  or  constitutes  a  part  of  the  nuisance. 


COOSAW  MINING  CO.  v.  SOUTH  CAROLINA. 

In  the  Supreme  Court  of  the  United  States,  1891. 

[144  United  States  550.] 

This  suit  was  brought  by  the  appellees,  March  23,  1891,  in  one  of  the 
courts  of  South  Carolina,  and,  subsequently,  on  the  petition  of  the  appel- 
lant, the  defendant  below,  was  removed  into  the  Circuit  Court  of  the 
United  States.  45  Fed.  Rep.  804.  Its  object  was  to  obtain  a  decree  en- 
joining the  Coosaw  Mining  Company,  its  servants,  agents  and  employees, 
from  claiming  any  right,  title,  interest  or  grant  in  or  to  the  phosphate 


730        COOSAW  MINING  CO.  v.  SOUTH  CAROLINA       [part  ii. 

rock  and  phosphatic  deposits  in  Coosaw  River  in  that  State;  from 
digging,  mining  or  removing  such  rock  and  deposits  in  the  bed  of  that 
river;  and  from  obstructing  by  suit  or  otherwise  any  agent  or  other  per- 
son, acting  by  authority  of  the  State  Board  of  Phosphate  Commissioners, 
from  digging,  mining  and  removing  the  same. 

The  grounds  of  equity  jurisdiction  in  such  cases  as  the  one  before  us 
are,  substantially,  those  upon  which  courts  of  equity  interfere  in  cases  of 
waste,  public  nuisance  and  purpresture.^ 

The  case  of  the  United  States  v.  Gear,  3  How.  120,  121,  123,  bears 
upon  this  question.  The  United  States,  claiming  to  be  the  owner  of  cer- 
tain lands  upon  which  there  was  a  lead  mine,  brought  an  action  of 
trespass  quare  clausum  fregit  against  the  party  in  possession.  They  also 
brought  a  suit  in  equity  for  an  injunction  to  stay  waste.  This  court  held, 
in  the  equity  case,  that  digging  ore  from  lead  mines  upon  the  public 
lands  was  such  waste  as  entitled  the  United  States  to  a  writ  of  injunction 
to  restrain  it. 

These  principles  are  applicable  to  the  present  case.  The  remedy 
at  law  for  the  protection  of  the  State  in  respect  to  the  phosphate  rocks 
and  phosphatic  deposits  in  the  beds  of  its  navigable  waters  is  not  so  effica- 
cious or  complete  as  a  perpetvial  injunction  against  interference  with  its 
rights  by  digging,  mining  and  removing  such  rocks  and  deposits  without 
its  consent.  The  Coosaw  Mining  Company,  unless  restrained,  will  not 
only  appropriate  to  its  use  property  held  in  trust  for  the  public,  but  will 
prevent  the  proper  administration  of  that  trust,  for  an  indefinite  period, 
by  obstructing  others,  acting  under  lawful  authority,  from  enjoying 
rights  in  respect  to  that  property  derived  from  the  State.  These  con- 
flicting claims  cannot  be  so  effectively  or  conclusively  settled  by  proceed- 
ings at  law,  as  by  a  comprehensive  decree  covering  all  the  matters  in 
controversy.  Proceedings  at  law  or  by  indictment  can  only  reach  past  or 
present  wrongs  done  by  the  appellant,  and  will  not  adequately  protect  the 
public  interests  in  the  future.  What  the  public  are  entitled  to  have  is 
security  for  all  time  against  illegal  interference  with  the  control  by  the 
State  of  the  digging,  mining  and  removing  of  phosphate  rock  and  phos- 
phatic deposits  in  the  bed  of  Coosaw  River.  Such  security  was  properly 
given  l)y  the  decree  below .^ 

Decree  affirmed. 

*  A  part  of  the  opinion  discussing  other  cases  is  omitted. 

""  In  Georgetown  v.  Alexandria  Canal  Co.,  1838,  12  Pet.  96,  97,  Mr.  Justice 
Barbour  said: 

"It  is  unnecessary,  however,  to  prosecute  this  inquiry,  because  there  is  a 
view  of  the  subject  which  we  think  decisive  of  the  case.  Were  it  even  admitted 
that  the  canal  company  had  exceeded  the  authority  under  which  they  are  acting, 
nevertheless,  as  the  Potomac  River  is  a  navigable  stream,  a  part  of  the  jus  pub- 
licum, any  obstruction  to  its  navigation  would,  upon  the  most  established  prin- 
ciples, be  wliJit  is  declared  by  law  to  be  a  public  nuisance.  A  public  nuisance 
being  the  sul)ject  of  criminal  jurisdiction,  the  ordinary  and  regular  proceeding 
at  law  is  by  indictment  or  infoniiation,  by  which  the  nuisance  may  be  abated. 


CHAP.  I.]  STATE  V.  OHIO  OIL  CO.  731 

State  v.  Ohio  Oil  Co.  (1897)  150  Ind.  21.  McOabe,  J.— The  sub- 
stance of  the  complaint  is,  that  for  many  years  heretofore  there  has 
been  underlying  Madison,  Grant,  Howard,  Delaware,  Blackford,  Tip- 
ton, Hamilton,'  Wells  and  other  counties  in  Indiana  a  large  deposit  of 
natural  gas,  utilized  for  fuel  and  light  by  the  people  of  those  counties 
and  of  many  other  counties  and  cities  in  Indiana,  including  Indianapolis, 
Ft.  Wayne,  Richmond,  Logansport,  Lafayette  and  others  of  the  most 
populous  cities  of  the  State,  to  which  cities  the  gas  is  conducted,  after 
being  brought  through  wells  to  the  surface  of  the  ground,  by  pipes  and 
conduits,  by  means  of  which  many  hundreds  of  thousands  of  the  people 
of  Indiana  are  supplied  with  gas  for  light  and  fuel.  The  natural  gas 
underlying  the  counties  named,  and  other  portions  of  Indiana,  is  con- 
tained in  and  percolates  freely  through  a  stratum  of  rock  known  as 
"  Trenton  Rock,"  comprising  a  vast  reservoir  in  which  the  gas  is  confined 
under  great  pressure,  and  from  which  it  escapes,  when  permitted  to  do  so, 
with  great  force.  The  fuel  supplied  by  the  natural  gas  thus  obtained 
is  the  cheapest  and  best  known  to  civilization,  and  the  value  of  the  nat- 
ural gas  deposit  to  the  State  and  its  citizens  is  many  millions  of  dollars. 
Since  the  discovery  of  the  gas  deposit  in  1886,  vast  sums  of  money  have 
come  into  the  State  and  have  been  invested  in  building  up  large  manu- 
facturing interests,  and  vast  sums  of  money  belonging  to  the  people  of 
Indiana  have  been  invested  in  similar  enterprises,  causing  a  great  in- 
crease of  population,  principally  in  the  territory  underlying  which  gas 
is  found. 

Natural  gas  exists  in  large  reservoirs,  or  a  series  of  reservoirs  con- 
nected with  each  other,  underlying  the  gas  territory,  and  the  diminu- 
tion or  consumption  of  natural  gas  taken  from  any  part  of  them  affects 
or  reduces  correspondingly  the  common  supply.  If  the  gas  supply  is 
accordingly  husbanded  and  protected  it  will  last  for  many  years,  and  con- 
tinue to  supply  the  various  interests  named  with  abundant  fuel,  and  the 
population,  wealth,  and  other  material  interests  of  the  State  will  continue 
to  be  benefited  and  enhanced,  and  the  comfort,  enjoyment,  and  happiness 
of  the  people  of  the  State  greatly  increased. 

It  is  next  contended  that  there  is  no  authority  or  right  of  action  in  the 
State  at  common  law,  and  especially  that  the  State  cannot  maintain  a 
suit  in  equity,  either  under  the  statute  or  at  common  law.  This  being 
a  suit  in  equity,  as  the  law  existed  prior  to  the  adoption  of  the  civil  code 
of  1852,  if  the  objection  last  mentioned  be  well  taken,  it  is  fatal  to  the 
complaint.    The  reason  assigned  in  argument  why  the  State  cannot  main- 

and  the  person  who  caused  it  may  be  punished.  If  any  particular  individual 
shall  have  sustained  special  damage  from  the  erection  of  it,  he  may  maintain 
a  private  action  for  such  special  damage,  because  to  that  extent  he  has 
suffered  beyond  his  portion  of  injury  in  common  with  the  community  at 
large.     5  Bac.  Abr.  Nuisance,  B.  p.  51 ;  2  Ld.  Raym.  1163." 

And  see  for  Federal  and  State  cases  following  the  principal  case  12  Rose, 
Notes  on  U.  S.  Reports   185-186. 


732  STATE  v.  OHIO  OIL  CO.  [part  ik 

tain  the  action  for  an  injunction  is  that  the  statute  provides  a  different 
remedy,  namely,  the  recovery  of  a  penalty  of  $200.00  for  each  violation  of 
the  act,  and  a  further  penalty  of  $200.00  for  each  ten  days  during  which 
such  violation  shall  continue,  to  be  recovered  in  a  civil  action  in  the  name 
of  the  State,  for  the  use  of  the  county  in  which  such  well  is  located,  with 
attorney's  fees  and  costs  of  suit.  And  another  remedy  provided  in  an- 
other section  of  the  act  is  that  certain  persons  in  the  vicinity  are  author- 
ized to  go  upon  the  land  where  any  well  is  situate  from  which  gas  or 
oil  is  allowed  to  escape  in  violation  of  the  act,  and  shut  up  the  same,  and 
pack  and  tube  said  well  so  as  to  prevent  the  escape  of  gas  or  oil,  and 
maintain  a  civil  suit  against  the  owner  for  the  costs  of  such  closing  of 
said  well,  with  attorney's  fees  and  costs  of  suit.  But  this  court  has  gone 
much  further  than  to  hold  that  the  fact  that  the  civil  remedy  given  to 
recover  penalties  and  the  other  remedies  for  violation  of  the  act,  does 
not  bar  the  right  to  an  injunction.  In  the  case  of  the  Peoples  Gas  Co. 
V.  Tyner,  supra,  it  was  said :  "  No  authority  has  been  cited,  and  we  know 
of  none,  supporting  the  position  of  the  appellants  that  the  appellee  is  not 
entitled  to  an  injunction  because  the  accumulation  of  nitroglycerine 
within  the  corporate  limits  of  a  town  or  city  is  a  crime.  It  has  long  been 
settled  that  a  private  citizen  may  maintain  an  action  for  a  public  wrong 
if  he  suffers  an  injury  peculiar  to  himself  and  not  sustained  by  the  public 
in  general."  In  that  case  it  was  held  that  the  extraordinary  equitable 
remedy  by  injunction  could  be  invoked  by  a  private  citizen,  even  though 
the  act  to  be  enjoined  was  made  a  crime  by  statute. 

The  supreme  court  of  Kansas,  in  State  v.  Crawford,  28  Kansas,  726, 
said :  "  Every  place  where  a  public  statute  is  openly,  publicly,  repeat- 
edly, continuously,  persistently  and  intentionally  violated,  is  a  public 
nuisance."  The  demurrer  to  the  complaint  admits  that  the  wells  of  the 
appellee  are  in  this  category. 

Appellee's  counsel  have  conceded  that  the  pressure  in  gas  wells  since 
the  discovery  of  gas  in  this  State  has  fallen  from  350  pounds  to  150 
pounds.  This  very  strongly  indicates  the  possibility,  if  not  the  prob- 
ability, of  exhaustion.  In  the  light  of  these  facts,  one  who  recklessly, 
defiantly,  persistently,  and  continuously  wastes  natural  gas,  and  boldly 
declares  his  purpose  to  continue  to  do  so,  as  the  complaint  charges 
appellee  with  doing,  all  of  which  it  admits  to  be  true  by  its  demurrer, 
ought  not  to  complain  of  being  branded  as  the  enemy  of  mankind.  But 
appellee  tries  to  excuse  its  conduct  on  the  score  that  it  cannot  mine  and 
utilize  oil  under  and  in  its  land  without  wasting  the  gas.  But  there  is 
nothing  in  the  record  to  bear  out  that  claim.  However,  if  there  was,  it 
would  not  furnish  a  valid  excuse.  It  is  not  the  use  of  unlimited  quanti- 
ties of  gas  that  is  prohibited,  but  it  is  the  waste  of  it  that  is  forbidden. 
The  object  and  policy  of  that  inhibition  is  to  prevent,  if  possible,  the  ex- 
haustion of  the  storehouse  of  nature,  wherein  is  deposited  an  element  that 
ministers  more  to  the  comfort,  happiness,  and  well-being  of  society  than 
any  other  of  the  bounties  of  the  earth.    Even  if  the  appellee  cannot  draw 


CHAP.  I.]  STATE  V.  OHIO  OIL  CO.  733 

oil  from  its  well  without  wasting  gas,  it  is  not  denied  that  it  may  draw 
gas  therefrom,  and  utilize  it  without  wasting  the  oil.  But,  even  if  it  can- 
not draw  oil  from  such  wells  without  wasting  gas,  and  is  forbidden  by 
injunction  so  to  do,  it  is  only  applying  the  doctrine  that  the  owner  must 
so  use  his  own  property  as  not  to  injure  others.  It  may  use  its  wells  to 
produce  gas  for  a  legitimate  use,  and  must  so  use  them  as  not  to  injure 
others  or  the  community  at  large.  The  continued  waste  and  exhaustion 
of  the  natural  gas  of  Indiana  through  appellee's  wells  would  not  only 
deny  to  the  inhabitants  the  many  valuable  uses  of  the  gas,  but  the  State, 
whose  many  quasi  public  corporations  have  many  millions  of  dollars  in- 
vested in  supplying  gas  to  the  State  and  its  inhabitants,  will  suffer  the 
destruction  of  such  corporations,  the  loss  of  such  investments  and  a 
source  of  large  revenues.  To  use  appellee's  wells  as  they  have  been  doing, 
they  injure  thousands  and  perhaps  millions  of  the  people  of  Indiana,  and 
the  injury,  the  exhaustion  of  natural  gas,  is  not  only  an  irreparable  one, 
but  it  will  be  a  great  public  calamity.  The  oil  appellee  produces  is  of 
very  small  consequence  as  compared  with  that  calamity  which  it  mer- 
cilessly and  cruelly  holds  over  the  heads  of  the  people  of  Indiana,  and,  in 
effect,  says :  "  It  is  my  property,  to  do  as  I  please  with,  even  to  the 
destruction  of  one  of  the  greatest  interests  the  State  has.  and  you  people 
of  Indiana  help  yourselves  if  you  can.  What  are  you  going  to  do 
about  it  ?" 

We  had  petroleum  oil  for  more  than  a  third  of  a  century  before  its 
discovery  in  this  State,  imported  from  other  States,  and  we  could  con- 
tinue to  do  so  if  tlie  i:)roduction  of  oil  should  cease  in  this  State.  But  we 
cannot  have  the  blessings  of  natural  gas  unless  the  measures  for  the 
preservation  thereof  in  this  State  are  enforced  against  the  lawless.  We 
therefore  conclude  that  the  facts  stated  in  the  complaint  make  a  case  of 
a  public  nuisance  which  the  appellant  has  a  right  to  have  abated  by  in- 
junction, and  that  the  complaint  states  facts  sufficient  to  constitute  a 
cause  of  action.  Hence,  the  circuit  court  erred  in  sustaining  appellee's 
demurrer  to  the  complaint.  The  judgment  is  reversed,  and  the  cause 
remanded,  with  instructions  to  overrule  said  demurrer,  and  require  the 
defendant  to  answer  the  complaint,  and  for  further  proceedings  in 
accordance  with  this  opinion. 


734  CORNING  and  others  t;.  LOWERRE  [part  ii. 


CORNING  AND  OTHERS  V.  LOWERRE. 

In  THE  Court  of  Chancery  of  New  York,  before  Chancellor  Kent, 

1822. 

[6  Johnson's  Chancery,  439.] 

Bill  for  an  injunction  to  restrain  the  defendant  from  obstructing  Ves- 
try street,  in  the  City  of  New  York,  and  averring  that  he  was  building  a 
house  upon  that  street,  to  the  great  injury  of  the  plaintiff,  as  owners  of 
lots  on  and  adjoining  that  street,  and  that  Vestry  street  has  been  laid 
out,  regulated,  and  paved,  for  about  twenty  years. 

The  Chancellor  distinguished  this  case  from  that  of  the  Attorney-Gen- 
eral V.  The  Utica  Insurance  Company,  2  Johns.  Ch.  Rep.  371,  inasmuch 
as  here  was  a  special  grievance  to  the  plaintiffs,  affecting  the  enjoyment 
of  their  property,  and  the  value  of  it.  The  obstruction  was  not  only  a 
common  or  public  nuisance,  but  worked  a  special  injury  to  the  plaintiffs. 

Injunction  granted.' 

^  In  Georgetown  v.  Alexandria  Canal  Co.,  1838,  12  Peters,  91,  98,  Mr.  Justice 
Barbour,   speaking  for  a  unanimous   court,   said: 

"Besides  this  remedy  at  law,  it  is  now  settled  that  a  court  of  equity  may 
take  jurisdiction  in  cases  of  public  nuisance  by  an  information  filed  by  the 
Attorney-General.  This  jurisdiction  seems  to  have  been  acted  on  with  great 
caution  and  hesitancy.  Thus,  it  is  said  by  the  Chancellor  in  18  Ves.  217  that 
the  instances  of  the  interposition  of  the  court  were  confined  and  rare.  He 
referred,  as  to  the  principal  authority  on  the  subject,  to  what  had  been 
done  in  the  court  of  exchequer  upon  the  discussion  of  the  right  of  the 
Attorney-General,  by  some  species  of  information,  to  seek  on  the  equitable 
side  of  the  court  relief  as  to  nuisance  and  preventive  relief.  Chancellor  Kent 
in  2  Johns.  Ch.  382  remarks  that  the  equity  jurisdiction  in  cases  of  public 
nuisance,  in  the  only  cases  in  which  it  had  been  exercised — that  is,  in  cases 
of  encroachment  on  the  King's  soil — had  lain  dormant  for  a  century  and  a 
half;  that  is,  from  Charles  I.  down  to  the  year  1795.  Yet  the  jurisdiction 
has  been  finally  sustained,  upon  the  principle  that  equity  can  give  more 
adequate  and  complete  relief  than  can  be  obtained  at  law.  Whilst,  there- 
fore, it  is  admitted  by  all  that  it  is  confessedly  one  of  delicacy,  and  accordingly 
the  instances  of  its  exercise  are  rare,  yet  it  may  be  exercised  in  those  cases 
in  which  there  is  imminent  danger  of  irreparable  mischief  before  the  tardiness 
of   the   law   could   reach    it. 

"The  court  of  equity,  also,  pursuing  the  analogy  of  the  law  that  a  party 
may  maintain  a  private  action  for  special  damage,  even  in  case  of  a  public 
nuisance,  will  now  take  jurisdiction  in  case  of  a  public  nuisance  at  the 
instance  of  a  private  person  where  he  is  in  imminent  danger  of  suffering 
a  special  injury,  for  which,  under  the  circumstances  of  the  case,  the  law 
would  not  afford  an  adequate  remedy.  Amongst  other  cases,  this  doctrine 
is  laid  down  in  the  case  of  Crowder  v.  Tinkler,  19  Ves.  616.  In  that  case, 
page   022,   the   Chancellor   says:     'Upon   the   question   of   jurisdiction,   if   the 


CHAP.  I.]  DEMPSIE  V.  DAELING  et  al.  735 

DEMPSIE  V.  DARLING  et  al. 

In  the  Supreme  Court  of  Washington,  1905. 

[81  Pacific  Reporter  152.] 

Dunbar,  J.  The  complaint  in  this  case  alleged,  in  substance,  that  the 
appellant  owns  a  parcel  of  vacant  ground  in  the  City  of  Spokane ;  that 
contiguous  to  this  ground  is  a  house  and  lot  owned  by  the  respondent, 
Philadelphia  Securities  Company;  that  the  house  has  three  stories;  that 
the  respondent  Philadelphia  Securities  Company  for  a  long  time  has 
been  and  is  renting  the  second  and  third  stories  of  the  house  to  respon- 
dent F.  L.  O.  Dai'ling  as  and  for  a  house  of  ill-fame,  and  for  the  pur- 
pose of  enabling  her,  as  proprietress,  to  conduct  a  house  of  prostitution 
therein,  and  to  enable  her  to  have  and  harbor  therein  prostitutes  and  lewd 
and  abandoned  women  for  the  purposes  of  prostitution ;  that  pursuant  to 
said  purpose  the  said  respondent  F.  L.  O.  Darling  has  been  and  is  con- 
ducting a  house  of  prostitution  in  the  second  and  third  stories  of  said 
house,  and  that  prostitution  has  been  and  is  practiced  in  the  second  and 
third  stories  by  the  said  proprietress  and  the  other  respondents,  who  are 
lewd  and  abandoned  women,  and  reside  therein ;  that  it  is  the  wish  and 
purpose  of  appellant  to  build  at  once  upon  his  said  vacant  ground  a 

subject  was  represented  as  a  mere  public  nuisance,  I  could  not  interfere  in 
this  case,  as  the  Attorney-General  is  not  a  party;  and  if  he  was  a  party,  upon 
the  dicta,  unless  it  was  clearly  a  public  nuisance  generally,  the  court  would 
not  interpose  by  injunction  until  it  had  been  tried  at  law.  The  complaint 
is,  therefore,  to  be  considered  as  of  not  a  public  nuisance  simply;  but  what, 
being  so  in  its  nature,  is  attended  with  extreme  probability  of  irreparable 
injury  to  the  property  of  the  plaintiffs,  including,  also,  danger  to  their 
existence;  and  on  such  a  case,  clearly  established,  I  do  not  hesitate  to  say 
an  injunction  would  be  granted.'  The  principle  is  also  distinctly  asserted 
and  acted  on  by  Chancellor  Kent  in  the  ease  of  Corning  v.  Lowerre,  6  Johns. 
Ch.  439.  In  that  case  a  bill  was  filed  for  an  injunction  to  restrain  the 
defendant  from  obstructing  Vestry  street,  in  the  City  of  New  York,  and 
averring  that  he  was  building  a  house  upon  that  street,  to  the  great  injury 
of  the  plaintiffs,  as  owners  of  lots  on  and  adjoining  that  street;  and  that 
Vestry  street  had  been  laid  out,  regulated  and  paved  for  about  twenty  years. 
The  injunction  was  granted.  The  Chancellor  said  that  here  was  a  special 
grievance  to  the  plaintiffs  affecting  the  enjoyment  of  their  property  and 
the  value  of  it.  The  obstruction  was  not  only  a  common  or  public  nuisance, 
but  worked  a  special  injury  to  the  plaintiffs.  The  principle,  then,  is,  that 
in  case  of  a  public  nuisance,  where  a  bill  is  filed  by  a  private  person  asking 
for  relief  by  way  of  prevention,  the  plaintiff  cannot  maintain  a  stand  in  a 
court  of  equity  unless  he  avers  and  proves  some  special  injury." 

For  the  cases  in  the  Federal  and  State  courts  of  like  holding,  see  note  to 
the  case  last  cited  inx3  Rose,  Notes  on  United  States  Reports,  pp.  709-712. 


736  DEMPSTE  v.  DARLING  et  al.  [part  ii. 

house,  to  be  by  him  devoted  to  and  occupied  for  some  respec- 
table and  lawful  purpose;  that,  by  reason  of  the  conducting  of 
a  house  of  prostitution  in  the  aforesaid  second  and  third  stories  of  said 
house,  and  the  presence  of  prostitutes  therein,  any  house  which  appellant 
might  build  upon  his  ground  would  be  undesirable  for  any  lawful  use, 
and  he  could  not  occupy  it  or  rent  it  for  any  lawful  purpose;  and  that, 
by  reason  of  the  facts  above  stated,  his  ground  is  being  continuously 
and  irreparably  damaged  by  diminution  in  value;  and  an  injunction  was 
prayed  for.  The  respondents  interposed  a  demurrer  to  the  effect  that  the 
complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of  action. 
The  demurrer  was  sustained,  and,  the  appellant  having  refused  to  plead 
further,  a  final  judgment  of  dismissal  of  the  action  was  rendered  in  favor 
of  respondents,  from  which  judgment  this  appeal  is  taken. 

We  think  the  court  erred  in  sustaining  the  demurrer  in  this  complaint. 
It  is  contended  by  the  respondents,  in  sustentation  of  the  action  of  the 
court,  that  inasmuch  as  the  plaintiff's  lot  was  a  vacant  lot,  and  a  house 
had  not  already  been  built  upon  it  which  would  be  affected  by  the  nui- 
sance complained  of,  the  damages  are  therefore  too  remote  and  specula- 
tive; that  the  plaintiff  has  not  yet  built  upon  said  lot;  and  that  he  may 
never  do  so.  But  the  allegation  of  the  complaint  is  to  the  effect  that  it 
is  the  purpose  of  the  plaintiff  to  build  at  once  upon  this  lot  a  house  for 
the  purpose  of  lease  or  rent  for  some  reputable  and  lawful  purpose ;  and 
it  would  seem  unreasonable  to  compel  the  plaintiff  to  wait  until  he  had 
been  to  the  expense  of  constructing  a  house,  and  advertising  the  same  for 
rent  for  a  reasonable  time,  before  applying  to  the  courts  for  a  remedy 
which  would  necessarily,  in  the  natural  process  of  litigation,  be  delayed 
for  a  considerable  length  of  time,  thereby  depriving  him  of  a  right  to 
which  he  is  entitled,  viz.,  to  enjoy  the  use  of  his  property  without  hind- 
rance through  the  operation  of  a  nuisance.  It  may  be  conceded  at  the 
outset  that,  when  a  party  seeks  the  aid  of  a  court  of  equity  by  injunction, 
he  must  show  not  only  a  clear  legal  or  equitable  right,  but  also  a  well- 
grounded  apprehension  of  immediate  injury  to  his  rights,  and  that,  where 
no  necessity  is  shown  for  the  injunction  as  a  means  of  protection  to  such 
rights,  it  should  not  be  granted.  But  it  seems  to  us  that  the  immediate 
injury  is  sufficiently  set  forth  in  the  complaint  under  consideration. 

The  case  of  Dana  v.  Valentine,  5  Mete.  8,  cited  by  respondents,  and 
which  it  is  claimed  is  exactly  in  point,  seems  to  us  not  to  reach  the  case 
under  consideration  at  all.  There,  it  is  true,  the  court  used  the  following 
language,  quoted  in  respondents'  brief,  viz. :  "Upon  no  principle  of  equity 
can  the  court  interpose  in  their  favor  by  injunction  on  the  defendant  to 
desist  from  carrying  on  his  trade;  there  being  no  certainty  that  dwelling 
houses  will  ever  be  erected  on  these  premises,  or,  if  there  should  be,  it  is 
uncertain  when  such  erections  may  be  made.  To  require  this  extraor- 
dinary r('li«!f.  the  injury  complained  of  must  actually  exist,  or  the  danger 
must  appear  to  be  certain  and  immediate,  and  not  depending  on  any  con- 
tingency.    We  think  it  therefore  very  manifest  that  these  owners  of  va- 


CHAP.  I.]  DEMPSIE  v.  DAELING  et  al.  737 

cant  lots  have  made  out  no  title  to  the  interposition  of  a  court  of  equity." 
An  examination  of  that  case,  however,  reveals  the  fact  that  that  action 
was  brought  against  the  defendant  both  by  the  owners  of  vacant  lots  and 
by  the  owners  of  buildings  adjacent  to  the  alleged  nuisance,  which  was 
the  business  of  manufacturing  soap  and  candles  and  of  slaughtering 
cattle,  and  the  injunction  was  denied  on  two  grounds,  viz. :  First,  that 
the  plaintiffs,  if  they  had  been  injured,  had  a  complete  and  adequate  rem- 
edy at  law;  and,  second,  that  the  defendant  had  made  out  a  good  pre- 
scriptive right  and  justification.  So  that  in  any  event  the  complaint  of 
the  parties  who  owned  the  vacant  lots  would  have  failed  under  the  gen- 
eral ruling  of  the  court  on  the  two  propositions  just  above  mentioned, 
and  what  was  said  in  relation  to  them  was  purely  without  the  case.  But 
in  any  event  their  right  to  relief  was  denied  specially  upon  the  ground 
that  they  had  a  complete  and  adequate  remedy  at  law,  and  that  an  action 
at  law  for  the  recovery  of  damages  for  the  diminution  of  the  value  of 
their  lands  by  the  nuisance  alleged  was  available  to  them;  there  being 
no  certainty  that  any  dwelling  houses  would  ever  be  erected  upon  the 
premises,  or,  if  they  should  be,  when  such  erections  would  be  made,  and 
that  equity  would  not  reach  beyond  these  contingencies  to  afford  relief. 
But  as  we  have  before  noticed,  so  far  as  the  certainty  of  the  building 
is  concerned,  and  also  the  certainty  of  the  time,  the  allegation  of  the 
complaint,  which  must  be  taken  to  state  the  truth,  is  to  the  effect  that 
the  building  will  be  erected  at  once.  And  as  to  the  second  proposition 
there  decidedly  the  court,  that  an  action  for  damages  was  the  only  resort 
of  the  plaintiffs,  the  owners  of  vacant  lots,  that  question  was  decided 
adversely  to  the  respondents'  contention  by  this  court  in  Ingersoll  v. 
Rousseau,  35  Wash.  92,  76  Pac.  513,  where  it  was  held  that  injunction  lies 
to  abate  the  maintenance  of  a  bawdy  house  as  a  public  nuisance  specially 
injurious  to  plaintiff's  adjoining  property,  used  for  residence  purposes — 
the  common-law  remedies  of  indictment  and  action  on  the  case  being 
inadequate — and  that  this  rule  has  not  been  changed  by  statute  in  this 
State.  The  above  conclusion  was  reached  after  a  lengthy  and  evidently 
painstaking  investigation  of  the  law  and  an  investigation  of  the  authori- 
ties, ancient  and  inodern,  on  this  subject,  and  puts  at  rest  the  contention 
made  by  the  respondents  that  the  remedy  by  injunction  was  not  open  to 
the  plaintiff  in  this  case  if  the  petition  in  other  respects  stated  a  cause  of 
action. 

The  respondents  also  cite  1  High  on  Injunctions,  774,  where  it  is  said 
by  that  author:  "To  justify  a  court  of  equity  in  enjoining  a  nuisance  of 
the  class  under  consideration,  the  person  aggrieved  must  show  to  the 
court  some  actual,  substantial  damage,  and  not  merely  a  remote,  con- 
tingent, or  prospective  injury."  But  the  preceding  section  discloses  the 
class  under  consideration.  The  author  there  was  discussing  injunctions 
which  were  asked  for  against  the  operation  of  legitimate  biisinesses,  such 
as  the  burning  of  brick,  the  erection  of  a  chandlery  or  of  slaughter  houses, 
or  of  livery  stables,  or  the  operation  of  limekilns  or  gas  works — busi- 


738  HARNISS  et  al.  v.  BULPITT  [part  ii. 

nesses  that  were  in  themselves  lawful  enterprises,  which  the  government 
is  anxious  to  foster  under  proper  regulations  and  locations.  But  the  nui- 
sance complained  of  in  this  case  is  of  an  entirely  different  character.  It 
is  degrading,  immoral,  indecent,  and  always  under  the  ban  of  the  law, 
and  courts  ought  not  to  be  too  exacting  with  citizens  who  are  asking 
relief  from  such  impositions  upon  their  rights.  An  examination  of  the 
other  cases  cited  by  respondents  shows  that  they  are  not  applicable  to 
the  facts  stated  in  this  complaint,  as  construed  by  the  decision  of  this 
court  in  Ingersoll  v.  Rousseau,  supra. 

The  judgment  will  be  reversed,  with  instructions  to  overrule  the  de- 
murrer to  the  complaint.' 

Mount,  C.  J.,  and  Root,  Crew,  Hadley,  Fullerton  and  Rudkin,  J.J., 
concur. 


HARNISS  ET  al.  v.  BULPITT. 
Court  of  Appeal,  Second  District,  California,  1905. 

[81  Pacific  Reporter,  1022.] 

Allen,  J.  This  is  an  action  for  damages  and  to  procure  an  order  for 
the  abatement  of  a  nuisance  alleged  to  exist  by  reason  of  obstruction 
by  fences  at  both  ends  of  a  public  alley  in  the  town  of  Bishop,  Inyo 
County,  this  State,  upon  which  alley  plaintiffs'  property  abuts,  by  which 

^  The  following  comment  on  the  principal  case  was  made  in  6  Columbia 
Law  Review,  p.  56: 

"Since  Hamilton  v.  Whittridge,  1857,  11  Md.  128,  the  courts  have  generally 
granted  injunctions  restraining  the  maintenance  of  such  nuisances,  though 
the  question  seems  always  to  have  arisen  between  owners  of  adjoining  occupied 
houses.  Blagden  v.  Smith,  1899,  34  Or.  394;  Crawford  v.  Tyrrell,  1904, 
128  N.  Y.  341;  Weakley  v.  Page,  1899,  102  Tenn.  178;  Marson  v.  French,  1884, 
61  Tex.  173;  contra,  Neaf  v.  Palmer,  1898,  103  Ky.  496;  Anderson  v.  Doty, 
1884,  33  Hun.  160.  And  the  fact  that  land  is  unoccupied  should  not  cut  off 
relief,  occupancy  aflfecting  merely  the  extent,  not  the  right  of  recovery.  Ruck- 
man  V.  Green,  N.  Y.,  1876,  9  Hun  225;  Busch  v.  Railroad  Co.,  1890,  12  N.  Y. 
Supp.  85;  but  see  Dana  v.  Valentine,  Mass.,  1842,  5  Met.  8.  The  courts 
denying  the  relief  seem  not  to  have  distinguished  between  what  must  be 
shown  to  constitute  a  nuisance  and  what  is  necessary  to  constitute  special 
damages,  the  fact  of  the  nuisance  being  established.  In  this  latter  situation, 
mere  diminution  in  value  is  sufficient  special  damage  on  which  to  base  an 
injunction.  High,  Injunctions.  §  785;  and  see  Harrison  v.  Good,  1871,  L.  R. 
11  Eq.  338.  In  the  principal  case,  the  maintenance  of  a  bawdy  house  being 
a  nuisance  per  sc,  Wood,  Nuisance,  §  29,  and  tiie  allegation  of  reduced  value 
constituting  the  neccHsary  special  damages  being  admitted  by  the  demurrer, 
the  court  properly  holds  that  the  complaint  states  a  case  for  injunction." 


CHAP.  I.]  HARNISS  et  al.  v.  BULPITT  739 

plaintiflFs  are  deprived  of  the  free  use  of  their  propertj-,  and  from  going 
from  their  property  out  upon  said  alley,  or  through  the  same  to  Church 
street,  a  public  street  in  said  town.  The  damages  were  claimed  on  ac- 
count of  the  depreciation  in  value  and  by  reason  of  being  deprived  of  the 
use  of  said  alley.  To  the  complaint  a  demurrer  was  interposed  upon  the 
grounds,  first,  that  plaintiffs  had  no  legal  capacity  to  sue;  and,  second, 
that  the  complaint  did  not  state  facts  sufficient  to  constitute  a  cause  of 
action.  The  demurrer  being  overruled,  defendant  answered,  denying  all 
the  material  averments  of  the  complaint  other  than  the  construction  of 
the  fences  at  the  places  designated  in  the  complaint.  The  defendant 
further  alleges  that  the  strip  of  ground  denominated  a  public  alley  in 
plaintiffs'  complaint  was  not  an  alley,  but  the  private  property  of  defen- 
dant. Findings  and  judgment  went  for  plaintiffs,  and  a  decree  was  en- 
tered enjoining  the  defendant  from  maintaining  such  fences  or  obstruct- 
ing said  alley.     From  the  judgment  defendant  appeals. 

There  being  nothing  apparent  upon  the  face  of  the  complaint  as  in- 
dicating plaintiffs'  want  of  capacity  to  sue,  the  demurrer  upon  that 
ground  was  properly  overruled.  The  principal  contention  of  defendant 
presented  in  his  points  and  authorities  is  that  the  complaint  does  not 
state  a  cause  of  action,  because  no  injury  is  alleged  different  in  kind  from 
that  sustained  by  the  public  at  large.  The  nuisance  complained  of,  being 
the  obstruction  of  a  public  alley,  is  a  public  one.  That  plaintiff  may 
have  redress  in  a  private  action,  it  must  appear  by  proper  averment  that 
the  plaintiff  will  suffer  some  injury  therefrom  in  its  nature  special  and 
peculiar  to  him,  and  different  in  kind  from  that  to  which  the  public  is 
subjected.  Civ.  Code,  §  3493;  Siskiyou  Lumber  Co.  v.  Eostel,  121  Cal. 
,513,  53  Pac.  1118.  Applying  this  test  to  the  complaint,  we  regard  it  as 
sufficient.  The  allegations  that  ingress  and  egress  to  and  from  the  abut- 
ting property  owned  by  plaintiffs  upon  or  through  the  alley  is  prevented 
by  the  obstruction  is  an  allegation  of  an  injury  to  a  private  right  inci- 
dental to  private  property.  The  owner  of  property  abutting  upon  a 
street  or  alley  owns  the  incidental  rights  to  ingress  and  egress  as  com- 
pletely as  he  does  the  property  to  which  the  rights  are  an  incident. 
Brown  v.  Board  of  Supervisors,  124  Cal.  280,  57  Pac.  82.  An  infringe- 
ment upon  these  rights  is,  therefore,  a  private  wrong.  "  When  the  alleged 
nuisance  would  constitute  a  private  wrong  by  injuring  property  or 
creating  personal  inconvenience  and  annoyance  for  which  an  action 
might  be  maintained  in  favor  of  the  party  injured,  the  same  is  none 
the  less  actionable  because  the  wrong  is  committed  in  a  manner  which 
would  render  the  party  liable  to  indictment  for  a  common  nuisance." 
Wesson  v.  Washburn  Printing  Co.,  13  Allen,  95,  90  Am.  Dec.  181 ;  Lind 
V.  City  of  San  Luis  Obispo,  109  Cal.  344,  42  Pac.  437. 

Appellant's  final  contention  is  that  the  complaint  alleging  that  the 
strip  of  ground  was  a  public  alley,  and  had  been  so  used  for  twenty-five 
years  as  a  means  of  ingress  and  egress  to  and  from  plaintiffs'  property, 
was  an  insufficient  statement  of  fact,  in  that  the  manner  in  which  it  be- 


740  GARDNER  v.  THE  TRUSTEES  [part  ii. 

came  such  alley  was  not  averred;  and  the  finding  was  challenged  in  the 
same  regard.  There  is  no  merit  in  this  contention.  The  allegation  was 
sufficient,  and  the  findings  support  the  judgment. 

Judgment  affirmed. 

We  concur:  Gray,  P.  J.;  Smith,  J. 


GARDNER  v.  THE  TRUSTEES  OF  THE  VILLAGE  OF  NEW- 
BURGH. 

In  the  Court  of  Chancery  of  New  York,  1816. 

[2  Johnson's  Chancery  162.] 

The  bill,  which  was  for  an  injunction,  stated,  that  the  plaintiff  is 
owner  of  a  farm  in  the  village  of  Newburgh,  through  which  a  stream 
of  water  has,  from  time  immemorial,  run,  having  its  source  from  a 
spring  in  the  adjoining  farm  of  the  defendant,  Hasbrouck,  and  after 
entering  the  plaintiff's  land,  continues  its  whole  course  through  his  farm 
until  it  empties  into  the  Hudson  River.  That  this  stream  greatly  fer- 
tilizes his  fields,  and,  running  near  his  house,  serves  for  watering  his 
cattle,  and  for  various  domestic  and  economical  purposes.  That  it 
supplies  water  to  a  brick-yard  on  the  farm  of  the  plaintiff  where 
most  of  the  bricks  used  in  Newburgh  are  made ;  it  also  supplies  a 
large  distillery  erected  by  him  at  great  expense,  and  a  churning-mill, 
and  water  for  a  mill-seat,  where  the  plaintiff  is  about  to  erect  a  mill 
for  grinding  plaster  of  paris.  That  the  trustees  of  the  village  of  New- 
burgh, the  defendants,  by  false  representations,  obtained  an  act  of  the 
Legislature,  passed  the  27th  of  March,  1809,  to  enable  the  said  trustees 
to  sui)ply  the  inhabitants  of  the  village  with  pure  and  wholesome  water. 
That  the  trustees  applied  to  the  plaintiff  for  leave  to  divert  the  stream, 
offering  him  a  trifling  and  very  inadequate  compensation,  which  he 
]-efused.  That  the  said  trustees,  having  obtained  leave  from  the  de- 
fendant, Hasbrouck,  the  owner  of  the  stream,  to  use  and  divert  the 
water,  or  a  part  thereof,  that  is,  a  stream  one  inch  and  a  quarter  in 
diameter,  taken  from  a  great  elevation,  have  commenced  a  conduit, 
and  threaten  to  divert  the  stream,  or  a  great  part  thereof,  from  the 
plaintiff's  farm.  That  the  plaintiff  is  apprehensive  that  if  this  is  done, 
there  will  not,  in  a  dry  season,  be  water  sufficient  even  for  his  cattle, 
etc.  The  plaintiff,  therefore,  prayed  an  injunction  to  prevent  the 
defendants  from  diverting  the  water,  etc.  The  bill  was  sworn  to, 
and  the  plaintiff  produced  several  affidavits,  which  stated  that  the 
stream  was  not  more  than  sufficient  for  the  distillery,  brick-yard,  etc., 
of  the   plaintiff,  and   if   diverted   through  a   pipe,  or  tube,   of  the  pro- 


CHAP.  I.]  GAEDNER  v.  THE  TRUSTEES  741 

posed  diameter,  would  greatly  injure,  if  not  render  the  \yorks  useless. 
One  of  the  affidavits  stated,  that  the  whole  stream  would  pass  through 
a  tube  of  one  inch  diameter,  with  a  head  of  five  feet. 

The  Chancellor  [James  Kent.] — The  statute  under  which  the 
trustees  of  the  village  of  Newburgh  are  proceeding,  Sess.  32,  ch.  119, 
makes  adequate  provision  for  the  party  injured  by  the  laying  of  the  con- 
duits through  his  land,  and  also  affords  security  to  the  owner  of  the 
spring,  or  springs,  from  whence  the  water  is  to  be  taken.  But  there  is  no 
provision  for  making  compensation  to  the  plaintiff,  through  whose  land 
the  water  issuing  from  the  spring  has  been  accustomed  to  flow.  The  bill 
charges,  that  the  trustees  are  preparing  to  divert  from  the  plaintiff's 
land,  the  whole,  or  the  most  part  of  the  stream,  for  the  purpose  of  sup- 
plying the  village.  The  plaintiff's  right  to  the  use  of  the  water  is  as 
valid  in  law,  and  as  useful  to  him  as  the  rights  of  others  who  are  indem- 
nified or  protected  by  the  statute ;  and  he  ought  not  to  be  deprived  of  it, 
and  we  cannot  suppose  it  was  intended  he  should  be  deprived  of  it,  with- 
out his  consent,  or  without  making  him  a  just  compensation.  The  act 
is,  unintentionally,  defective,  in  not  providing  for  his  case,  and  it  ought 
not  to  be  enforced,  and  it  was  not  intended  to  be  enforced,  until  such 
provision  should  be  made. 

It  is  a  clear  principle  in  law,  that  the  owner  of  land  is  entitled  to  the 
use  of  a  stream  of  water  which  has  been  accustomed,  from  time  imme- 
morial, to  flow  through  it,  and  the  law  gives  him  ample  remedy  for  the 
violation  of  this  right.  To  divert  or  obstruct  a  watercourse  is  a  private 
nuisance;  and  the  books  are  full  of  cases  and  decisions  asserting  the 
right  and  affording  the  remedy,  F.  N.  B.  184;  Moore  v.  Browne,  Dyer 
319  b;  Lutterel's  case,  4  Co.  86;  Glynne  v.  Nichols,  Comb.  43,  2  Show. 
507;  Prickman  v.  Trip,  Comb.  231. 

The  court  of  chancery  has  also  a  concurrent  jurisdiction,  by  injunc- 
tion, equally  clear  and  well  established  in  these  cases  of  private  nuisance. 
Without  noticing  nuisances  arising  from  other  causes,  we  have  many 
cases  of  the  application  of  equity  powers  on  this  very  subject  of  diverting 
streams.  In  Einch  v.  Resbridger,  2  Vern.  390,  the  Lord  Keeper  held,  that 
after  a  long  enjoyment  of  a  watercourse  running  to  a  house  and  garden, 
through  the  ground  of  another,  a  right  was  to  be  presumed,  unless  dis- 
proved by  the  other  side,  and  the  plaintiff  was  quieted  in  his  enjoyment, 
by  injunction.  So,  again,  in  Bush  v.  Western,  Prec.  in  Ch.  530,  a  plaintiff 
who  had  been  in  possession,  for  a  long  time,  of  a  watercourse,  was 
quieted  by  injunction,  against  the  interruption  of  the  defendant,  who 
had  diverted  it,  though  the  plaintiff  had  not  established  his  right  at  law, 
and  the  court  said  such  bills  were  usual.  These  cases  show  the  ancient 
and  established  jurisdiction  of  this  court ;  and  the  foundation  of  that 
jurisdiction  is  the  necessity  of  a  preventive  remedy  when  great  and  im- 
mediate mischief,  or  material  injury  would  arise  to  the  comfort  and  use- 
ful enjoyment  of  property.  The  interference  rests  on  the  principle  of  a 
clear  and  certain  right  to  the  enjoyment  of  the  subject  in  question,  and 


742  GARDNEE  v.  THE  TRUSTEES  [part  ii. 

an  injurious  interruption  of  that  right  which,  upon  just  and  equitable 
grounds,  ought  to  be  prevented.  Anon.  1  Vern.  120 ;  East  India  Company 
V.  Sandys,  1  Vern.  127;  Hills  v.  University  of  Oxford,  1  Vern.  275; 
Anon.  1  Vesey  47G;  Anon.  2  Vesey  414;  Whitchurch  v.  Hide,  2  Atk. 
391 ;  2  Vesey  453 ;  Attorney-General  v.  Nichol,  16  Vesey  338. 

In  the  application  of  the  general  doctrines  of  the  court  to  this  case,  it 
appears  to  me  to  be  proper  and  necessary  that  the  preventive  remedy  be 
applied.  There  is  no  need,  from  vphat  at  present  appears,  of  sending  the 
plaintiff  to  law  to  have  his  title  first  established.  His  right  to  the  use  of 
the  stream  is  one  which  has  been  immemorially  enjoyed,  and  of  which  he 
is  now  in  the  actual  possession.  The  trustees  set  up  no  other  right  to  the 
stream  (assuming,  for  the  present,  the  charges  in  the  bill),  than  what  is 
derived  from  the  authority  of  the  statute;  and  if  they  are  suffered  to 
proceed  and  divert  the  stream,  or  the  most  essential  part  of  it,  the 
plaintiff  would  receive  immediate  and  great  injury,  by  the  suspension 
of  all  those  works  on  his  land  which  are  set  in  operation  by  the  water. 
In  addition  to  this,  he  will  lose  the  comfort  and  use  of  the  stream  for 
farming  and  domestic  purposes;  and,  besides,  it  must  be  painful  to  any 
one  to  be  deprived,  at  once,  of  the  enjoyment  of  a  stream  which  he  has 
been  accustomed  always  to  see  flowing  by  the  door  of  his  dwelling.  A 
right  to  a  stream  of  water  is  as  sacred  as  a  right  to  the  soil  over  which 
it  flows.  It  is  a  part  of  the  freehold  of  which  no  man  can  be  disseised 
"  but  by  lawful  judgment  of  his  peers,  or  by  due  process  of  law."  This 
is  an  ancient  and  fundamental  maxim  of  common  right  to  be  found  in 
magna  charta,  and  which  the  Legislature  has  incorporated  into  an  act 
declaratory  of  the  rights  of  the  citizens  of  this  State. 

I  shall,  accordingly,  upon  the  facts  charged  in  the  bill,  and  supported 
by  affidavits,  as  a  measure  immediately  necessary  to  prevent  impending 
injury,  allow  the  injunction,  and  wait  for  the  answer,  to  see  whether  the 
merits  of  the  case  will  be  varied. 

Injunction  granted.' 

^"The  right  of  the  riparian  owner  to  have  the  stream  flow  by  his  land  in 
its  natural  condition  extends  to  the  quality  as  well  as  the  quantity  of  the 
water,  and  an  upper  proprietor  has,  prima  facie,  no  right  to  so  use  his  land 
or  the  water  of  the  stream  as  to  cause  pollution  of  the  latter.  This  right 
of  a  lower  riparian  proprietor  to  have  the  water  come  to  him  free  from 
pollution  is  subject,  however,  to  the  right  of  the  upper  proprietor  to  make 
a  reasonable  use  of  the  water;  and  whether  a  use  which  affects  the  purity 
of  the  water  is  reasonable  in  a  particular  case  is,  like  the  question  as  to 
excessive  use,  one  of  fact,  to  be  determined  by  a  consideration  of  the  character 
and  ordinary  use  of  the  stream,  the  extent  of  the  pollution,  its  necessity  for 
the  purpose  of  making  a  beneficial  use  of  the  water,  and  the  resulting  injury 
to   lower   proprietors."      1    Tidany,   Real    Property,    §   207. 

In  tlic  footnote  lo  the  j)iiragraph  quoted  the  student  will  find  cited  the 
leading  autliorities,   which   amply   support  the   text. 


CHAP.  I.]  SWAINE  V.  KAILWAY  CO.  743 

SWAINE  V.  THE  GREAT  NORTHERN  RAILWAY  COMPANY. 

In  Chancery,  1864. 
[4  De  Gex,  Jones  and  Smith  211.] 

This  was  an  appeal  by  the  plaintiff  from  the  dismissal  of  his  bill  with 
costs  by  his  Honor  the  Vice-Chancellor  Wood. 

The  case  made  by  the  bill  was  in  substance  as  follows : 

The  plaintiff  owned  a  house  on  land  adjoining  certain  premises  on 
which  the  defendant  railway  maintained  a  siding.  The  defendants  had 
formerly  used  the  siding  for  discharging  the  contents  of  their  wagons  and 
trucks  but  more  recently  had  used  it  for  discharging  large  quantities  of 
dung  and  other  manure,  together  with  decomposing  animal  remains.  In 
some  instances  this  was  immediately  carried  away  and  so  caused  no  in- 
convience ;  at  other  times  the  material  had  been  placed  in  stacks  or  heaps 
and  allowed  to  remain  so  for  a  considerable  time. 

The  plaintiff  alleged  that  the  effluvium  arising  from  the  heaps, 
rendered  the  enjoyment  or  occupation  of  his  house  impossible,  without 
the  greatest  discomfort,  inconvenience,  and  danger  to  health. 

The  appellant  asked  for  an  injunction  to  restrain  the  respondents  from 
using  the  siding,  for  the  deposit  of  manure  in  such  a  manner  as  to  in- 
terfere with  the  quiet  and  wholesome  enjoyment  by  the  appellant  of  his 
house  and  premises. 

The  appellant,  it  appeared,  had  taken  no  steps  to  try  his  right  against 
the  respondents  at  law,  nor  had  he  moved  in  the  suit  for  an  interlocutory 
injunction. 

The  Lord  Justice  Turner  : 

But  upon  the  facts  of  this  case  there  are  two  points — first,  whether  the 
appellant  is  entitled  to  an  injunction;  and  secondly,  whether,  if  not  en- 
titled to  an  injunction,  he  is  entitled  to  damages  in  this  court. 

I  do  not  understand  it  to  be  contended  that,  if  the  manure  was  brought 
to  the  station  in  a  proper  manner,  and  was  properly  dealt  with  when 
"there,  the  appellant  would  have  a  case  for  the  interference  of  the  court. 
The  case  made  by  the  bill  and  argued  at  the  bar  is  this :  first,  that  the 
manure  was  not  proper  manure;  and  secondly,  that  it  was  not  removed 
from  time  to  time  as  often  as  it  ought  to  have  been  removed. 

Upon  the  evidence,  it  cannot  be  denied  that  in  some  instances  dead 
dogs  and  cats  have  got  into  this  manure — that  occasionally  the  manure 
which  was  carried  was  not  proper  manure.  Nor  can  it  be  denied  that  in 
some  instances  the  manure  has  remained  at  the  station  longer  than  it 
ought  to  have  remained.  The  manure  is  brought  down ;  the  farmer  does 
not  send  for  it  on  the  day  it  arrives.  It  must  be  emptied  out  of  the 
trucks,  and  deposited  in  some  place  or  other. 

But  the  real  question  is,  whether  there  has  been  such  a  continued 


744  LAMBTON  v.  MELLISH  [part  ii. 

system  of  carrying  manure  of  a  description  not  proper  to  be  carried,  and 
therefore  prejudicial  to  the  appellant,  and  such  a  continued  system  of 
keeping  manure  at  the  station  beyond  the  time  necessary  or  proper  for 
disposing  of  it,  as  to  induce  the  court  to  interfere  by  injunction. 

With  reference  to  this  point,  and  adliering  to  the  opinion  expressed  by 
both  Lord  Cranwor'JM  and  myself  in  the  case  of  The  Attorney-General 
V.  The  Sheffield  Gas  Company,  1853,  3  De  G.  M.  &  G.  304,  that  it  is  not 
in  every  case  of  nuisance  that  the  court  will  interfere  by  injunction; 
and  holding  that  occurrences  of  nuisances,  if  temporary  and  occasional 
only,  are  not  grounds  for  the  interference  of  this  court  by  injunction, 
except  in  extreme  cases.  There  is  not  in  my  judgment  here  a  sufficient 
case  for  interference. 

The  Lord  Justice  Knight  Bruce.     I  agree. 


LAMBTOJ^  V.  MELLISH. 
LAMBTON  V.  COX. 

In  the  Supreme  Court  of  Judicature,  Chancery  Division,  1894. 
[Law  Reports  [1894]  3  Chancery,  163.] 

The  plaintiff  was  the  lessee  and  occupier  of  a  house  adjoining  Ashstead 
Common  in  Surrey.  The  premises  of  the  defendant  Mellish  were  about' 
60  or  70  yards  from  the  plaintiff's  premises,  and  those  of  the  defendant 
Cox  were  about  120  or  130  yards  from  the  plaintiff's  premises  and  about 
100  yards  from  those  of  the  defendant  Mellish,  and  were  separated  from, 
both  by  a  line  of  railway. 

It  appeared  that  during  the  summer  months  a  large  number  of  school 
treats  and  assemblages  of  that  description  took  place  on  Ashstead 
Common. 

The  defendants  Mellish  and  Cox  were  rival  refreshment  contractors 
who  catered  for  visitors  and  excursionists  to  the  common,  and  both  the 
defendants  had  merry-go-rounds  on  their  premises,  and  were  in  the  habit 
of  using  organs  as  an  accompaniment  to  the  amusements. 

It  appeared  from  the  evidence  that  these  organs  were  for  three  months 
or  more  in  the  summer  continuously  being  played  together  from  10  or 
11  A.M.  till  6  or  7  P.M.,  and  that  the  noise  caused  by  the  two  organs  was 
"maddening." 

The  organs  used  by  Mellish  had  been  changed,  and  it  was  alleged  by 
him  that  the  organ  in  use  when  the  motion  was  made  was  a  small  port- 
al)le  hand  organ  making  comparatively  little  noise.  That  used  by  Cox 
was  a  niiifh  larger  one  provided  with  trumpet  stops  and  emitting  sounds 
whifli  could  \)c  heard  at  the  distance  of  one  mile. 

The  plaint  ill  now  n)oved  against  the  defendant  in  each  action  for  an 


CHAP.  I.]  LAMBTON  v.  MELLISII  745 

injunction  restraining:  him  from  playing  any  organs  so  as  to  cause  a 
nuisance  or  injury  to  the.  plaintiff  or  his  family,  or  other  the  occupiers 
of  the  plaintiff's  property. 

Chitty,  J.  Notwithstanding  the  conflict  of  evidence,  I  am  of  opin- 
ion that  the  plaintiff  is  entitled  to  the  injunction  he  asks  for  as  against 
the  defendant  in  each  action. 

A  man  may  tolerate  a  nuisance  for  a  short  period.  A  passerby  or  a 
bystander  would  not  find  any  nuisance  in  these  organs;  but  the  case 
is  very  different  when  the  noise  has  to  be  continuously  endured :  under 
such  circumstances  it  is  scarcely  an  exaggeration  to  term  it  "  madden- 
ing," going  on,  as  it  does,  hour  after  hour,  day  after  day,  and  month, 
after  month.  I  consider  that  the  noise  made  by  each  defendant,  taken 
separately,  amounts  to  a  nuisance.  But  I  go  further.  It  was  said  for 
the  defendant  Mellish  that  two  rights  cannot  make  a  wrong — by  that  it 
was  meant  that  if  one  man  makes  a  noise  not  of  a  kind,  duration,  or  de- 
gree sufficient  to  constitute  a  nuisance,  and  another  man,  not  acting  in 
concert  with  the  first,  makes  a  similar  noise  at  the  same  time,  each  is 
responsible  only  for  the  noise  made  by  himself,  and  not  also  for  that 
made  by  the  other.  If  the  two  agreed  and  acted  in  combination  each 
would  be  a  wrongdoer.  If  a  man  shouts  outside  a  house  for  most  of  the 
day,  and  another  man,  who  is  his  rival  (for  it  is  to  be  remembered 
that  these  defendants  are  rivals)  does  the  same,  has  the  inhabitant  of 
the  house  no  remedy?  It  is  said  that  that  is  only  so  much  the  worse 
for  the  inhabitant.  On  the  ground  of  common  sense  it  must  be  the 
other  way.  Each  of  the  men  is  making  a  noise  and  each  is  adding 
his  quantum  until  the  whole  constitutes  a  nuisance.  Each  hears  the 
other,  and  is  adding  to  the  sum  which  makes  up  the  nuisance.  In  my 
opinion  each  is  separately  liable,  and  I  think  it  would  be  contrary  to 
good  sense,  and,  indeed,  contrary  to  law,  to  hold  otherwise.  It  would 
he  contrary  to  common  sense  that  the  inhabitants  of  the  house  should 
be  left  without  remedy  at  law.  I  think  the  point  falls  within  the  prin- 
ciple laid  down  by  Lord  Justice  James  in  Thorpe  v.  Brumfitt,  1873, 
L.  R.  8  Ch.  13,  p.  50.  That  was  a  case  of  obstructing  a  right  of 
way,  but  such  obstruction  was  a  nuisance  in  the  old  phraseology  of 
the  law.  He  says:  "Then  it  was  said  that  the  plaintiff  alleges 
an  obstruction  caused  by  several  persons  acting  independently  of 
each  other,  and  does  not  show  what  share  each  had  in  causing  it. 
It  is  probably  impossible  for  a  person  in  the  plaintiff's  position  to 
show  this.  Nor  do  I  think  it  necessary  that  he  should  show  it. 
The  amount  of  obstruction  caused  by  any  one  of  them  might 
not,  if  it  stood  alone,  be  sufficient  to  give  any  ground  of  com- 
plaint, though  the  amount  caused  by  them  all  may  be  a  serious  injury. 
Suppose  one  person  leaves  a  wheelbarrow  standing  on  a  way,  that  may 
cause  no  appreciable  inconvenience,  but  if  a  hundred  do  so,  that  may 
cause  a  serious  inconvenience,  which  a  person  entitled  to  the  use  of 
the  way  has  a  right  to  prevent ;  and  it  is  no  defence  to  any  one  person 


74G  EUSHMEE  v.  POLSUE  &  ALFIEEI  [part  ii. 

among  the  hundred  to  say  that  what  he  does  causes  of  itself  no  dam- 
age to  the  complainant."  There  is  in  my  opinion  no  distinction  in 
"these  respects  between  the  case  of  a  right  of  way  and  the  case,  such  as 
this  is,  of  a  nuisance  by  noise.  If  the  acts  of  two  persons,  each  being 
aware  of  what  the  other  is  doing,  amount  in  the  aggregate  to  what  is  an 
actionable  wrong,  each  is  amenable  to  the  remedy  against  the  aggregate 
cause  of  complaint.  The  defendants  here  are  both  responsible  for  the 
noise  as  a  whole  so  far  as  it  constitutes  a  nuisance  affecting  the  plaintiff, 
and  each  must  be  restrained  in  respect  of  his  own  share  in  making 
the  noise.  I  therefore  grant  an  interim  injunction  in  both  the  actions 
in  the  terms  of  the  notices  of  motion.' 


EUSHMEE  V.  POLSUE  &  ALEIEEI. 

In  the  Supre^me  Court  of  Judicature,  Chancery  Division,  1906. 

[Laiv  Reports  (1906)   1  Chancery  234.] 

Appeal  from  the  judgment  of  Warrington  J.  granting  a  perpetual 
injunction  to  restrain  a  nuisance  arising  from  noise. 

The  facts  of  the  case,  as  shown  by  the  evidence,  were  as  follows : — 
The  plaintiff  was  a  dairyman,  living  and  carrying  on  his  business  at 
No.  8  Gough  Square,  Fleet  Street,  in  the  City  of  London, — a  district  spe- 
cially devoted  to  printing  and  allied  trades.  Although  a  large  printing 
establishment  directly  opposite  was  operated,  at  certain  seasons  of  the 
year  at  night,  as  was  also,  at  all  times,  the  printing  works  of  a  daily 
newspaper  a  little  further  away,  it  was  shown  that  no  disturbance  or  in- 
convenience resulted  from  either  of  these.  The  defendants,  owners  of  an 
adjoinintr  house  (separated  by  a  party  wall),  previously  used  for  printing 
purposes,  but  operated  during  the  day  only,  set  up  a  printing  press  which 
later  they  bc^an  to  operate  at  night.  The  press  itself  was  of  an  improved 
kind,  quieter,  it  was  said,  than  most  machines  of  its  kind.  It  had  always 
been  carefully  and  properly  worked.  When  first  set  up  it  was  driven 
through  the  medium  of  a  shafting  fixed  to  the  ceiling  of  the  room;  but 
after  a  complaint  by  the  plaintiff  this  was  altered  and  the  machine  was 
driven  by  a  belt  passing  directly  to  it  from  the  motor.  Later  the  plain- 
tiff again  complained,  and  caused  a  formal  letter  of  complaint  to  be 

'  '"Supfto^f  one  person  loaves  a  wlieelbarrow  standing  on  a  way,  that  may 
fausf!  no  approcialile  inconvenience,  but  if  a  hundred  do  so,  that  may  cause 
a  serious  inconvenience,  wliich  a  person  entitled  to  the  use  of  the  way  has 
a  right  to  prevent ;  and  it  is  no  defence  to  any  one  person  among  the  hundred 
to  say  tliat  what  he  does  causes  of  itself  no  damage  to  the  complainant." 
Per  Sir  \V.  M.  .Ja.mks  in  Thorpe  v.  IJrumfitt,  1871,  L.  R.  8  Ch.  App.  G50,  G56. 


CHAP.  I.]  RTJSHMER  v.  POLSUE  &  ALFIERI  747 

written  by  his  solicitor.  No  reply  being  made,  the  plaintiff  issued  the 
writ  in  this  action  agajnst  the  defendants  for  an  injunction  to  restrain 
them  from  so  working  their  machinery  and  carrying  on  their  printing 
works,  as,  by  reason  of  noise  or  otherwise,  to  cause  a  nuisance  or  annoy- 
ance to  the  plaintiff  as  lessee  and  occupier  of  the  house,  No.  8,  Gough 
Square,  or  to  his  family,  or  to  the  persons  inhabiting  or  resorting  to  that 
house. 

In  their  defence  to  the  plaintiff's  statement  of  claim,  the  defendants 
denied  that  their  printing  machine  was  being  so  worked  as  to  cause 
a  nuisance  to  the  plaintiff,  and  they  insisted  that,  as  his  premises  were 
situated  in  the  heart  of  a  district  almost  entirely  devoted  to  the  printing 
and  allied  trades,  he  was  not  entitled  to  an  injunction.  At  the  conclu- 
sion of  the  trial,  before  Warrington  J.,  he  delivered  his  judgment,  in 
which  he  commenced  with  the  following  statement  of  the  legal  principles 
which,  in  his  opinion,  were  applicable  to  the  case : — "The  question  I  have 
to  answer  is  whether  the  defendants,  by  working  the  machine  in  question, 
seriously  interfere  with  the  comfort,  physically,  of  the  plaintiff  and  his 
family  in  the  occupation  of  his  house  according  to  the  ordinary  no- 
tions prevalent  among  reasonable  English  men  and  women:  Walter  v. 
Selfe,  4  De  G.  &  Sm.  315,  322;  and  for  the  purpose  of  answering  this 
question  I  am  not  to  look  at  the  defendants'  operations  in  the  abstract 
and  by  themselves,  but  in  connection  with  all  the  circumstances  of 
the  locality,  and  in  particular  in  reference  to  the  nature  of  the  trades 
usually  carried  on  there,  and  the  noises  and  disturbance  existing  prior 
to  the  commencement  of  the  defendants'  operations:  Sturges  v.  Bridg- 
man,  11  Ch.  D.  852,  865 ;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L. 
•C.  642.  But  if,  after  taking  these  circumstances  into  consideration,  I  find 
a  serious  and  not  merely  a  slight  additional  interference  with  the 
plaintiff's  comfort  as  above  defined,  I  think  it  is  the  duty  of  the  Court  to 
interfere:  Crump  v.  Lambert,  L.  R.  3  Eq.  409.  This  seems  to  me  to 
be  the  true  result  of  the  authorities."  His  Lordship  then  pro- 
ceeded to  deal  with  the  evidence,  and  stated  the  three  following  defiiiite 
findings  of  fact: — First,  that  although  in  the  day  time  the  plaintiff 
must  have  been  subject  to  some  noise  from  printing  works  in  the  im- 
mediate neighbourhood,  no  disturbance  at  night  had  been  caused  by 
noise  arising  from  any  of  those  sources.  Secondly,  that  as  regarded 
the  ordinary  working  hours  in  the  daytime,  the  plaintiff  had  not  proved 
such  a  substantial  addition  to  pre-existing  noises  as  would  amount  to 
a  legal  nuisance.  And,  thirdly,  that  the  night  working  of  the  de- 
fendants' machine  caused  a  serious  disturbance  to  the  plaintiff  and  his 
family  such  as  had  not  previously  been  experienced  by  them;  and  his 
Lordship  held  that  to  be  a  legal  nuisance  entitling  the  plaintiff  to  an 
injunction.  Accordingly  he  granted  a  perpetual  injunction  restraining 
the  defendants,  their  workmen,  servants  and  agents  from  so  working 
their  machinery  and  so  carrying  on  their  printing  works  at  No.  10,  Wine 
Office  Court,  as  by  reason  of  noise  to  cause  a  nuisance  to  the  plaintiff  as 


?48  EUSHMER  v.  POLSUE  &  ALFIERI  [part  ii. 

lessee  and  occupier  of  the  adjoining  house,  No.  8,  Gough  Square,  or  to  his 
family,  or  to  the  persons  inhabiting  or  resorting  to  such  house.' 

Vaughan  Williams  L.J.,  after  shortly  stating  the  object  of  the  action 
and  the  nature  of  the  evidence,  and  reading  the  principles  stated  by 
Warrington  J.,  in  the  portion  of  his  judgment  above  quoted,  as  being 
applicable  to  the  case,  proceeded : — ^ 

It  was  urged  upon  us  by  counsel  for  the  defendants,  that,  if  one  takes 
these  findings  of  the  judge  in  conjunction  with  the  finding  at  the  end  of 
his  judgment — namely  that,  as  a  fact,  the  night  work  caused  serious 
disturbance  to  the  plaintiff  and  his  family,  and  that  such  disturbance 
had  not  been  previously  experienced  by  them — it  becomes  apparent  that, 
although  the  learned  judge  referred  to  the  principles  laid  down  in  Walter 
V.  Selfe,  4  De  G.  &  Sm.  315,  322 ;  Sturges  v.  Bridgman,  11  Ch.  D.  852, 
865 ;  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642,  and  Crump  v. 
Lambert,  L.  R.  3  Eq.  409,  as  the  principles  governing  the  present  case, 
and  that  although  the  passages  referred  to,  taken  by  themselves,  may  not 
be  inconsistent  with  the  judgment  in  this  case,  yet,  if  those  cases  are 
examined,  it  would  seem  that  the  learned  judge  has  not  applied  the 
principle?  established  by  them,  and  that  this  especially  appears  to  be  so 
if  the  findings  at  the  end  of  the  judgment  in  this  case  are  read  in  connec- 
tion with  the  evidence,  and  that  if  they  are  not  so  read  those  findings  are 
contrary  to  the  evidence.  There  are,  in  my  opinion,  considerable 
grounds  for  this  conclusion.  The  findings  of  the  learned  judge  are 
quite  consistent  with  the  view  that  the  cases  above  referred  to  establish 
the  principle  that  in  an  action  for  nuisance  not  alleged  to  be  a  public 
nuisance  the  standard  of  comfort  to  be  applied — when  the  tribunal  deal- 
ing with  the  facts  asks  itself  the  question  whether  the  acts  done  by 
the  defendants  constitute  a  material  interference  with  the  ordinary  com- 
fort, physically,  of  human  existence — is  the  same  in  a  district  devoted 
to  a  trade  carried  on  by  traders  in  a  particular  and  established 
manner  as  it  would  be  outside  such  a  district  so  devoted  to 
a  particular  trade.  To  put  it  in  another  way,  the  findings  of  the 
learned  judge,  and  his  judgment,  are  consistent  with  his  having  taken 
the  view  that  if  a  man  lives  in  a  district  or  street  where  there  are 
numerous  printing  establishments,  and  a  printing  office  is  opened  next 
door  to  him  which,  in  a  district  devoted  to  the  printing  trade,  is  car- 
ried on  in  the  particular  and  established  manner  of  the  printing  trade  of 
that  district,  he  has  ground  for  complaint  and  a  cause  of  action  for  nui- 
sance, because  to  him  individually  there  may  arise  serious  discomfort 
from  th(>  printing  operations  carried  on  next  door  in  a  house  not 
previously  used  as  a  printing  office,  or  in  a  house  not  previously  used  for 
night  printing.  This  was  the  argument,  in  fact,  presented  to  us  by  Mr. 
Terrell  as  counsel  for  the  plaintiff,  who  contended  that  on  this  view  the 
finclings   of  the  learned  judge  was  amply  established  by  the  evidence, 

'  The  statement  of  facts  has  been   abridged. 
*A  part  only  of  the  opinion  is  given. 


CHAP.  I.]  EUSHMER  v.  POLSUE  &  ALFIERI  749 

which  clearly  shewed,  in  the  language  of  Lord  Romilly  in  Crump  v. 
Lambert,  L.  R.  3  Eq.  409,  which  he  cited,  that  there  was  a  material  in- 
terference with  the  ordinary  comfort  of  human  existence.  I  may  ob- 
serve that  I  do  not  myself  think  that  Lord  Rom  illy  meant  by  his  decision 
to  exclude  the  proposition  of  law  that  in  a  district  or  street  devoted  to 
trade  a  different  standard  of  comfort  should  be  applied  when  answer- 
ing the  question  whether  there  has  been  a  material  interference  with  or- 
dinary comfort  in  such  a  district  from  that  which  would  otherwise  be 
applied;  for  he  says,  L.  R.  3  Eq.  414:  "The  smoke  of  the  defendants' 
factory  has  produced  a  completely  new  state  of  things  as  regards  the 
plaintiffs  house  and  grounds."  I  cannot,  however,  but  see  that  these 
words  are  not  inconsistent  with  the  contention  that,  even  in  a  district 
or  street  devoted  to  trade,  if  a  new  factory  or  printing-house  is  opened, 
subjecting  the  occupier  of  some  house  in  that  district  or  street  to  an 
amount  of  noise  interfering  materially  with  human  comfort,  this  is 
sufficient  to  constitute  an  actionable  wrong,  and  that  the  words  are  con- 
sistent with  the  law,  namely,  that  the  defendant  in  such  a  case  could  not 
ask  to  have  Lord  Romilly's  words,  "ordinary  comfort  of  human  exist- 
ence," qualified  by  the  addition,  "as  enjoyed  in  this  district  devoted  to  a 
particular  trade."  But  if  Lord  Romilly  did  mean  this,  it  seems  to  me 
that  his  words  are  plainly  inconsistent  with  these  words  of  Lord  West- 
bury  in  the  St,  Helen's  Case,  11  H.  L.  C.  642,  650 :  "If  a  man  lives  in  a 
street  where  there  are  numerous  shops,  and  a  shop  is  opened  next  door 
to  him,  which  is  carried  on  in  a  fair  and  reasonable  way,  he  has  no 
ground  for  complaint,  because  to  himself  individually  there  may  arise 
much  discomfort  from  the  trade  carried  on  in  that  shop.  But  when  an 
occupation  is  carried  on  by  one  person  in  the  neighbourhood  of  another, 
and  the  result  of  that  trade,  or  occupation,  or  business,  is  a  material  in- 
jury to  property,  then  there  unquestionably  arises  a  very  different  con- 
sideration. I  think,  my  Lords,  that  in  a  case  of  that  description,  the 
submission  which  is  required  from  persons  living  in  society  to  that 
amount  of  discomfort  which  may  be  necessary  for  the  legitimate  and 
free  exercise  of  the  trade  of  their  neighbours,  would  not  apply  to  cir- 
cumstances the  immediate  result  of  which  is  sensible  injury  to  the 
value  of  the  property."  And,  further,  it  seems  to  me  that  Lord  Romilly's 
words,  if  they  are  to  have  the  above  meaning,  are  also  inconsistent  with 
the  words  of  Lord  Cranworth  in  the  same  case,  11  H.  L.  C.  653,  where, 
speaking  of  a  case  tried  by  him  in  the  County  of  Durham  as  a  Baron 
of  the  Exchequer,  he  says :  "It  was  proved  incontestably  that  smoke  did 
come  and  in  some  degree  interfere  with  a  certain  person;  but  I  said, 
*  You  must  look  at  it  not  with  a  view  to  the  question  whether,  abstracted- 
ly, that  quantity  of  smoke  was  a  nuisance,  but  whether  it  was  a  nui- 
sance to  a  person  residing  in  the  town  of  Shields.'  " 

The  view  that  the  standard  of  what  amount  of  freedom  from  smoke, 
smell,  and  noise  a  man  may  reasonably  expect  will  vary  with  the  locality 
in  which  he  dwells^  seems  to  me  confirmed  by  the  following  passage  in 


750  KUSHMER  v.  POLSUE  &  ALFIERI  [part  ii. 

Lord  Halsrury's  judgment  in  Colls  v.  Home  and  Colonial  Stores,  A.  C. 
179,  185 :  "  A  dweller  in  towns  cannot  expect  to  have  as  pure  air,  as 
free  from  smoke,  smell,  and  noise  as  if  he  lived  in  the  country,  and  dis- 
tant from  other  dwellings,  and  yet  an  excess  of  smoke,  smell,  and  noise 
may  give  a  cause  of  action,  but  in  each  of  such  cases  it  becomes  a 
question  of  degree,  and  the  question  is  in  each  case  whether  it  amounts 
to  a  nuisance  which  will  give  a  right  of  action."  The  view  I  have  just 
stated  is  confirmed  also  by  the  judgment  of  Lord  Hardwicke  in  Fish- 
mongers' Co.  V.  East  India  Co.,  1752,  1  Dick.  163,  cited  by  Lord  Mac- 
xaughten  and  also  by  Lord  Davey.  It  should  also  be  observed  that  the 
present  action  is  an  action  brought  for  a  nuisance  on  the  ground  that  the 
thing  alleged  to  be  a  nuisance  is  productive  of  sensible  personal  dis- 
comfort, and  not  upon  the  ground  that  the  alleged  nuisance  produces 
material  injury  to  the  plaintiffs  property.  And  Lord  Westbury,  in  St. 
Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  650,  draws  a  distinction 
between  these  cases,  saying  of  the  case,  where  the  thing  alleged  to  be  a 
nuisance  is  productive  merely  of  personal  inconvenience  and  interference 
with  one's  enjoyment,  one's  quiet,  one's  personal  freedom,  that  anything 
that  discomposes  or  injuriously  affects  the  senses  or  nerves,  whether  that 
may  or  may  not  be  denominated  a  nuisance,  must  undoubtedly  depend 
greatly  upon  the  circumstances  of  the  place  where  the  thing  complained 
of  actually  occurs.  If  a  man  lives  in  a  town,  it  is  necessary  that  he  should 
subject  himself  to  the  consequences  of  those  operations  of  trade  which 
may  be  carried  on  in  his  immediate  locality,  and  which  are  actually  neces- 
sary for  trade  and  commerce,  and  also  for  the  enjoyment  of  property,  and 
for  the  benefit  of  the  inhabitants  of  the  town  and  of  the  public  at  large. 
These  observations  seem  peculiarly  applicable  to  the  case  of  a  plaintiff 
who,  as  in  the  present  case,  carries  on,  in  fact,  the  business  of  supplying 
milk  to  the  persons  employed  in  the  very  trade  to  which  the  district  is 
devoted,  and  who  gets  compensation  for  the  personal  annoyance  to  which 
he  is  subjected  when  residing,  for  the  convenience  of  his  milk  trade,  in  a 
district  in  which  there  are  very  few  other  residents. 

My  brethren  arc,  I  believe,  of  opinion  that  the  evidence  in  this  case,  and 
in  particular  the  evidence  of  the  expert  called  by  the  plaintiff  and  the 
evidence  with  reference  to  the  noise  made  at  night  by  the  printing  ma- 
chines of  the  Daily  Telegraph  and  of  Messrs.  Pardon,  is  not  of  such  a 
character  as  to  justify  the  conclusion  that  the  learned  judge,  in  his  ulti- 
mate finding,  in  fact  failed  properly  to  apply  the  law  as  laid  down  in  the 
House  of  Lords  in  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642, 
and  in  the  Court  of  Appeal  in  Sturges  v.  Bridgman,  11  Ch.  D.  852,  and 
acted  on  a  view  of  Lord  Romilly's  decision  in  Crump  v.  Lambert,  L.  R. 
3  Eq.  409,  inconsistent  with  those  decisions.  I  do  not  think  I  ought  to 
differ  from  this  conclusion  or  inference  of  fact;  and,  accepting  this  con- 
clusion, it  would  not  be  right  to  review  the  decision  in  fact  of  the  judge 
who  tried  the  case  and  saw  and  heard  the  witnesses.  I  think,  however, 
that  I  ouglit  to  point  out  that,  in  my  opinion,  it  would  be  inconsistent 


CHAP.  I.]  EUSHMEE  V.  POLSUE  &  ALFIEEI  751 

with  the  view  expressed  by  Lord  Westbuky  in  St.  Helen's  Smeltinfi:  Co. 
V.  Tipping,  11  H.  L.  C.  650,  in  the  passage  I  have  already  read,  and  also 
inconsistent  with  the  view  expressed  by  Tiiesiger,  L.J.,  in  Sturges  v. 
Bridgman,  11  Ch.  D.  852,  to  hold  that  the  fact  that  night  work  caused  a 
serious  disturbance  to  the  plaintiff  and  his  family,  in  a  locality  devoted  to 
a  particular  trade  carried  on  by  the  traders  in  a  particular  and  established 
manner,  constituted  private  and  actionable  wrong.  In  Sturges  v.  Bridg- 
man, 11  Ch.  D.  865,  Thesiger  L.J.  expresses  his  view  thus :  "Whether  any- 
thing is  a  nuisance  or  not  is  a  question  to  be  determined,  not  merely  by  an 
abstract  consideration  of  the  thing  itself,  but  in  reference  to  its  circum- 
stances; what  would  be  a  nuisance  in  Belgrave  Square  would  not  neces- 
sarily be  so  in  Bermondsey;  and  where  a  locality  is  devoted  to  a  particu- 
lar trade  or  manufacture  carried  on  by  the  traders  or  manufacturers  in  a 
particular  and  established  manner  not  constituting  a  public  nuisance, 
judges  and  juries  would  be  justified  in  finding,  and  may  be  trusted  to 
find,  that  the  trade  or  manufacture  so  carried  on  in  that  locality  is  not  a 
private  or  actionable  wrong."  Again,  I  do  not  think  the  fact  that  the 
noise  of  the  defendants'  printing  machine  was  a  substantial  addition  to 
pre-existing  noises  would  amount  to  a  legal  nuisance,  if  such  noise  was 
only  the  result  of  carrying  on  the  trade  in  the  district  devoted  to  that 
trade  according  to  the  particular  and  established  manner.  So  to  hold 
would,  in  my  judgment,  be  to  disregard  the  standard  of  comfort  which 
a  person  living  in  such  a  district  would  have  a  right  to  expect,  and,  in 
effect,  to  hold,  as  Mr.  Terrell  argued,  that  the  plaintiff  in  such  circum- 
stances would  have  suffered  a  private  actionable  wrong,  unless  the  de- 
fendant could  establish  a  prescriptive  right,  which  I  much  doubt  whether 
he  could  ever  do  in  respect  of  a  nuisance  which  he  could  not  prevent,  and 
therefore  could  not  acquiesce  in.  I  do  not  think,  to  use  the  words  of  Lord 
Westbury,  that  the  plaintiff  would  have,  in  such  a  district,  a  good  cause 
of  action  merely  "  because  to  himself  individually  there  may  arise  much 
discomfort  from  the  trade  carried  on  in  "  the  newly-opened  printing  office. 
It  may  be,  however,  that  Warrington  J.  did  not  intend  by  his  judgment 
anything  to  the  contrary  of  this,  and  that  he  really  intended  to  find 
that  the  defendants'  trade  was  not  being  carried  on  in  the  particular 
and  established  manner  of  the  printing  district,  but  caused  serious  dis- 
turbance to  the  plaintiff  and  his  family  by  making  noises  in  excess  of 
those  made  by  carrying  on  the  trade  in  the  particular  and  established 
manner  of  the  trade  of  the  district.  I  should  not  myself  have  arrived  at 
this  conclusion  on  the  evidence  as  it  appears  from  reading  the  notes, 
but  I  agree  that  this  is  not  a  sufficient  ground  for  reviewing  the  de- 
cision of  the  learned  judge  if  he,  in  fact,  applied  the  principles  estab- 
lished by  St.  Helen's  Smelting  Co.  v.  Tipping,  11  H.  L.  C.  642,  and 
Sturges  V.  Bridgman,  11  Ch.  D.  852.  In  my  opinion  this  appeal  should  be 
dismissed.' 

^  The  concurring  opinions  of  Lord  Justices   Sterling   and   Cozens-Hardt 
are  omitted.  \ 


752  HENNESSY  v.  CARMONY  [part  ii. 

Hennessy  v.  Carmony,  1892,  50  N.  J.  Eq.  616.— [The  plaintiff  owned 
a  house  adjoining  premises  on  which  the  defendant  conducted  dyeing 
works.  A  part  of  the  latter's  equipment  was  two  small  engines  used  in 
driving  two  rotary  cylinders,  "whizzers,"  in  which  were  placed  the  dyed 
fabrics  for  drying,  the  water  being  driven  out  by  centrifugal  force.  The 
rapid  motion  of  these  engines  caused  vibrations  that,  owing  to  a  stratum 
of  quicksand  under  the  buildings,  more  or  less  seriously  affected  the 
plaintiff's  house.  The  plaintiff  filed  his  bill  alleging  that  this  vibration 
constituted  a  private  nuisance.]     Pitney,  Vice-Chancellor. 

The  familiar  ground  on  which  the  extraordinary  power  of  the  court  is 
invoked  in  such  cases  is  that  it  is  inequitable  and  unjust  that  the  injured 
party  should  be  compelled  to  resort  to  repeated  actions  at  law  to  recover 
damages  for  his  injury,  which,  after  all  in  this  class  of  cases,  are  incapa- 
ble of  measurement ;  and  I  presume  to  add  the  further  ground  that  in  this 
country  limiting  the  injured  party  to  such  remedy  must  result  in  giving 
the  wrongdoer  a  power  not  permitted  by  our  system  of  constitutional 
government,  viz.,  to  take  the  injured  party's  property  for  his  private  pur- 
poses upon  making,  from  time  to  time,  such  compensation  as  the  whims 
of  a  jury  may  give.  This  ground  of  equitable  action  is  of  itself  sufficient 
in  those  cases  where  the  injury,  though  not  irreparable,  promises  to  be 
repeated  for  an  indefinite  period,  and  so  is  continuous  in  the  sense  that 
it  will  be  persevered  in  indefinitely.     See  Ross  v.  Butler,  4  C.  E.  Gr.  302. 

Several  matters  have  at  various  times  and  on  various  occasions  been 
held  to  stand  in  the  way  of  granting  an  injunction  in  this  class  of  cases. 
The  principal  one  is  what  may  be  called  the  ^'de  minimis" — "  balance  of 
injury  "  and  "  discretion  "  doctrine.     It  has  been  said,  and  held  on  some 

8ee  note  on  this  case  in  6  Cohimbia  Law  Review  458. 

"In  an  action  of  this  kind,  a  fundamental  question  is,  by  what  standard,  as 
against  the  interests  of  a  neighbor,  is  one's  right  to  use  his  real  estate  to  be 
measured.  In  densely  populated  communities  the  use  of  property  in  many 
ways  which  are  legitimate  and  proper  necessajiily  affects  in  greater  or  less 
degi'ee  the  property  or  persons  of  others  in  the  vicinity.  In  such  cases  the 
inquiry  always  is,  when  rights  are  called  in  question,  what  is  reasonable 
under  the  circumstances.  If  a  use  of  property  is  objectionable  solely  on 
account  of  the  noise  which  it  makes,  it  is  a  nuisance,  if  at  all,  by  reason  of  its 
effect  ufion  the  health  or  comfort  of  those  who  are  within  hearing.  The 
light  to  make  a  noise  for  a  proper  pvnpose  must  be  measiued  in  reference 
to  the  degree  of  annoyaJice  which  others  may  reasonal)ly  be  required  to  sub- 
mit to.  In  connection  with  the  importance  of  the  business  from  which  it 
proceeds,  that  nnist  be  determined  by  the  effect  of  noise  upon  people  generally, 
and  not  upon  tliosc,  on  the  one  liand,  who  are  peculiarly  susceptible  to  it.  or 
those,  on  the  other,  who  by  long  experience  have  learned  to  endure  it  without 
inconvenience;  not  upon  tliose  whose  strong  nerves  and  robust  health  enable 
them  to  endure  tiie  greatest  disturbances  without  suffering,  nor  iqion  tliose 
whose  mental  or  physical  condition  makes  them  painfully  sensitive  to 
everytliing  about  tluiii."  I'cr  Knowlton,  J.,  in  Rogers  v.  Elliott,  1888,  146 
Mass.  349,  351. 


CHAP.  I.]  IIENNESSY   v.   CARMONY  753 

occasions,  that  where  the  injury  to  the  complainant  by  the  continuance  of 
the  nuisance  is  small  and  the  injury  to  the  defendant  by  its  discontinu- 
ance is  great,  the  court  will  consider  that  circumstance,  and  if  the  balance 
is  greatly  against  the  complainant  will,  in  the  exercise  of  a  sound  dis- 
cretion, refuse  the  injunction  and  leave  the  complainant  to  his  remedy 
at  law.  As  instances  in  which  this  motion  has  been  advanced  in  this  State 
may  be  cited  Quackenbush  v.  Van  Riper,  2  Gr.  Ch.  350;  Van  Winkle  v. 
Curtis.  2  Gr.  Ch.  422;  Railroad  Company  v.  Prudden,  5  E.  Gr.  530,  in 
the  court  of  errors  and  appeals;  and  in  the  later  case  of  Demarest  v. 
Hardham,  7  Stew.  Eq.  469. 

Demarest  v.  Ilardham  was  on  final  hearing,  and  while  some  expressions 
of  the  learned  vice-chancellor  there  found  standing  by  themselves  may 
seem  to  hold  that  the  granting  an  injunction  on  final  hearing  as  part  of 
the  decree  rests  in  the  discretion  of  the  chancellor,  I  think  that,  taking 
what  was  said  on  that  topic  as  a  whole,  it  does  not  bear  that  interpreta- 
tion.^ 

^  In  Demarest  v.  Hardham,  1881,  34  N.  J.  Eq.  469,  472,  Van  Fleet,  V.C,  said : 
"The  important  question  presented  by  the  case  is,  does  the  manner  in  which 
the  defendant  conducts  his  business  interfere  with  or  injure  the  business  of  the 
complainants  to  such  an  extent  as  to  create  a  nuisance  which  it  is  the  duty 
of  a  court  of  equity  to  enjoin?  The  defendant's  business  is  not  only  lawful, 
but  necessary.  It  is  carried  on  in  a  part  of  the  City  of  Newark  devoted  almost 
exclusively  to  manufacturing  and  business  purposes.  No  objection  can  there- 
fore be  made  to  it  on  the  ground  that  its  location  is  not  a  fit  one.  It  is  not 
necessarily  or  inherently  noxious,  offensive  or  injurious.  It  should  not,  there- 
fore, be  enjoined  except  under  a  stern  necessity.  The  complainants  ask  that 
it  be  absolutely  interdicted,  their  prayer  being  that  the  defendant  be  restrained 
from  further  operating  his  engine  and  presses.  To  grant  their  prayer  is 
to  destroy  the  defendant's  bvisiness.  Power  attended  with  such  disastrous 
consequences  should  always  be  exercised  sparingly,  and  with  the  utmost 
caution.  All  doubts  should  be  resolved  against  its  exercise.  Attorney-Gen- 
eral V.  Nichol,  16  Ves.  338.  Relief  by  injunction,  in  such  cases,  is  not  a 
matter  of  right,  but  rests  in  discretion.  If  the  legal  right  is  not  clear,  or 
the  injury  is  doubtful,  eventual  or  contingent,  equity  will  give  no  aid.  Rich- 
ard's App.,  57  Pa.  St.  105;  Rhodes  v.  Dunbar,  Id.  274;  Huckenstine's  App., 
70  Pa.  St.  102. 

"And  so,  too,  the  court  is  boimd  to  compare  consequences.  If  the  fact 
of  an  actionable  nuisance  is  clearly  established,  then  the  court  is  boimd  to 
consider  whether  a  greater  injury  will  not  be  done  by  granting  an  injunction, 
and  thus  destroying  a  citizen's  property  and  taking  away  from  him  his  means 
of  livelihood,  than  will  result  from  a  refusal,  and  leaving  the  injured  party 
to  his  ordinary  legal  remedy;  and  if,  on  thus  contrasting  consequences,  it 
appears  doubtful  whether  gi'eater  injury  will  not  be  done  by  granting  than 
by  withholding  the  injunction,  it  is  the  duty  of  the  court  to  decline  to  inter- 
fere. Hilton  V.  Earl  of  Granville,  1  C.r.  &  Ph.  283.  The  duty  of  granting 
or  refusing  an  injunction  is  a  matter  resting  in  sound  discretion.  It  should 
never  be  granted  when  it  will  operate  oppressively,  or  contrary  to  the  real 
justic*  of  the  case,  or  where  it  is  not  the  fit  and  appropriate  method  of  redress 


754  HENNESSY  v.  CAEMONY  [part  ii. 

With  regard  to  the  insignificancy  of  the  injury  to  the  complainant,  it 
seems  to  me  it  cannot  be  taken  into  account  if  it  be  appreciable  and  such 
as  would  clearly  entitle  him  to  damages  at  law.  That  consideration  was 
urged  and  overruled,  and  with  it,  as  I  think,  the  balance  of  injury  and 
convenience  notion  above  stated  by  the  court  of  errors  and  appeals  in 
Higgins  V.  Water  Co.,  9  Stew.  Eq.  538,  at  p.  541,  which  is  the  latest  ex- 
pression by  that  court  on  this  subject. 

This  seems  to  me  to  settle  the  rule  in  this  State. 

And  I  desire  here  for  myself  to  say  that  I  have  never  been  able  to  see 
how  the  question  of  the  right  of  the  complainant  to  an  injunction  on 
final  hearing  could  ever  be  a  matter  properly  resting  in  the  "  discretion  "' 
of  the  chancellor,  as  I  understand  the  force  of  that  word  in  that  connec- 
tion. If  by  "  discretion  "  is  here  meant  that  the  judge  must  be  discreet, 
and  must  act  with  discretion,  and  discriminate,  and  take  into  considera- 
tion and  give  weight  to  each  circumstance  in  the  case,  in  accordance  with 
its  actual  value  in  a  court  of  equity,  then  I  say  that  that  is  just  what  he 
must  do  in  every  case  that  comes  under  his  consideration — no  more  and 
no  less.  And  that  is  the  sense  in  which  I  understand  the  word  he  used 
in  Demarest  v.  Hardham.  But  if  the  word  "  discretion  "  in  this  connec- 
tion is  used  in  its  secondary  sense,  and  by  it  is  meant  that  the  chancellor 
has  the  liberty  and  power  of  acting,  in  finally  settling  proijerty  rights,  at 
his  discretion,  without  the  restraint  of  the  legal  and  equitable  rules  gov- 
erning those  rights,  then  I  deny  such  power.  It  seems  to  me  that  the  true 
scope  of  the  exercise  of  this  latter  sort  of  discretion  in  the  judicial  field 
is  found  in  those  matters  which  affect  procedure  merely,  and  not  the  ulti- 
mate right. 

I  have  taken  the  trouble  to  examine  many  of  the  cases  which  seem 
to  hold  more  or  less  the  contrary  of  what  I  understand  to  be  the  rule  laid 
down  by  the  court  of  errors  and  api)eals  in  Higgins  v.  Water  Company, 
and  find  most  of  them  distinguishable.  The  majority  of  them  are  rulings 
upon  preliminary  injunctions,  where  the  right  was  not  yet  settled,  or 
where  the  injury  was  not  a  continuing  one  and  the  remedy  at  law  ample, 
or,  if  on  final  hearing,  there  was  something  inequitable  in  the  com- 
plainant's conduct  or  case  which  would  amount  to  a  defence  in  equity  to- 
an  action  at  law. 

And  of  the  English  cases,  it  is  proper  further  to  observe  that  some  of 

under  all   the  circumstances  of  the  case,  or  when  it  will  or  may  work  fatal 
injury    to    the    person    enjoined. 

"The  principle  to  be  deduced  from  the  authorities  I  understand  to  be  this: 
That  an  injunction  to  restrain  a  lawful  business,  on  the  ground  that  it  is  so 
conducted  as  to  render  it  a  nuisance,  should  never  be  granted,  except  the 
complainant  shows  an  invasion  of  a  clear  legal  right,  resulting  in  permanent 
and  serious  injury,  which  cannot  be  adccjuatcly  redressed  liy  action  at  law, 
and  that  the  allowance  of  the  writ  will  not  inflict  upon  the  defendant  a  more 
serious  injury  than  the  complainant  will  sustain  if  the  writ  is  denied  and 
lie   l)c    left   to    his    ordinary    legal    remedy." 


CHAP.  I.]  HENNESSY   v.  CARMONY  755 

them  gave  damages,  instead  of  an  injunction,  under  the  authority  of  the 
acts  of  Parliament  for  that  purpose,  called  Lord  Cairn's  and  Sir  John 
Rolt's  acts.  The  giving  of  damages  for  continuing  nuisances  is  quite 
within  the  omnipotent  power  of  Parliament,  which  is  competent  to  take 
private  property  for  private  purposes.  In  this  country,  under  our  con- 
stitutional system,  as  before  remarked,  that  course  is  forbidden.  I  think 
the  language  of  Lord  Cuanwortii,  quoted  by  the  learned  chief  justice  in 
Iliggins  V.  Water  Company,  applies  with  increased  force  in  this  country. 

While  the  "  balance  of  injury "  notion  has  found  frequent  place  in 
many  English  cases,  the  later  and  best  considered  of  them  put  the  rules 
governing  courts  of  equity  in  such  cases  upon  their  true  ground.  Clowes 
V.  Staffordshire  Works,  L.  R.  8  Ch.  App.  125,  142,  1-13 ;  Wilts  v.  Water 
Works,  L.  R.  9  Ch.  App.  451 ;  Goodson  v.  Richardson,  9  Ch.  App.  221,  are 
examples.  This  last  was  a  case  of  an  injury  to  a  bare  right  of  property 
without  any  actual  damage.  Defendant  had  laid  a  water-main  in  a 
public  street,  the  fee  of  which  was  in  the  complainant,  and  Lord  Sel- 
BORNE  held  he  was  entitled  to  a  mandatory  injunction  compelling  it  to 
remove  it. 

Another  objection  taken  was,  that  if  the  fact  that  the  vibration  as  felt 
in  this  case  is  due  to  the  presence  of  an  underlying  layer  of  quicksand, 
then  the  defendant  should  not  be  held  responsible  for  it.  I  am  unable 
to  discover  any  strength  in  that  position.  I  do  not  see  how  the  fact  that 
nature  has  provided  a  very  convenient  medium  through  which  my  neigh- 
bor may  injure  my  property  should  be  held  to  give  him  the  right  to 
injure  it. 

I  will  advise  a  decree  that  the  defendant  be  restrained  from  so  using 
his  machines  as  to  cause  the  complainant's  house  to  vibrate,  and  also 
from  allowing  the  water  and  spray  from  the  exhaust  of  his  engines  to 
come  on  to  the  complainant's  lands." 

^"Is  the  evil  of  such  a  nature  as  to  justify  the  court  in  interfering?  It 
is  said  that  the  defendants  are  about  to  tear  up  the  streets  to  an  extent, 
on  one  side  represented  as  70  miles,  on  the  other  as  100  miles.  Take  it  that  100 
miles  of  the  streets  are  to  be  torn  up.  It  may  be  that  before  the  defendants 
complete  their  works  they  will  have  taken  up  the  pavement  over  100  miles, 
but  they  will  never  have  up  above  20  yards  at  the  same  time,  and  they  will 
never  have  even  that  length  up,  they  say,  for  above  two  days.  That  agrees  with 
one's  experience  from  what  one  observes  when  similar  works  are  going  on  in 
the  metropolis.     They  are  no  sooner  begun  than  ended. 

"The  circumstance  of  the  works  being  performed  in  this  case  in  a  vast 
number  of  places  in  the  course  of  the  next  two  or  three  years,  or  the  next 
year,  during  which  time  the  process  of  laying  down  the  pipes  will  be  going 
on,  does  not  appear  to  me  at  all  to  vary  the  case.  One  must  look  at  the 
quantum  of  evil  at  each  particular  place  and  at  each  particular  moment  of 
time  to  determine  whether  this  injunction  ought  to  be  granted. 

"It  may  be  asked  by  way  of  illustration,  why  does  not  the  court  restrain 
persons  from  coming  with  barrel-organs  through  a  town  and  disturbing  the 
peace   of  the   inhabitants?     No   doubt   it   would  be   a   very   serious  nuisance 


756  GILBEET  v.  SIIOWEEMAN  [part  ii. 

Gilbert  v.  Showerman,  1871,  23  Mich.  448. — Cooley,  J.  .  .  . 
Generally  speaking,  it  may  be  said  that  every  man  has  a  right  to  the 
exclusive  and  undisturbed  enjoyment  of  his  premises,  and  to  the  proper 
legal  redress  if  this  enjoyment  shall  be  interrupted  or  diminished  by  the 
act  of  others.  The  redress,  if  the  injury  is  slight  or  merely  casual,  or 
if  it  is  in  any  degree  involved  in  doubt,  should  be  by  action  for  the  re- 
covery of  damages ;  but  if  permanent  in  its  nature,  so  that  by  persis- 
tence in  it  the  wrongdoer  might,  in  time,  acquire  rights  against  the 
owner,  it  is  admissible  for  the  court  of  chancery  to  interfere  by  injunc- 
tion, provided  the  injury  is  conceded  or  clearly  established.  Webb  v. 
Portland  Manuf.  Co.,  3  Sum.  189;  Walker  v.  Shepardson,  2  Wis.  384; 
though  the  power  to  do  so  should  be  cautiously  and  sparingly  exercised. 
Attorney-General  v.  Niehol,  16  Ves.  338;  Rosser  v.  Randolph,  7  Port.  238. 
An  offensive  trade  or  manufacture  may  call  as  legitimately  for  the  in- 
terference of  equity  as  any  other  nuisance,  for,  as  is  said  by  Sir  William 
Blackstoxe,  though  these  are  lawful  and  necessary,  yet  they  should  be 
exercised  in  remote  places.  2  Bl.  Com.  217;  Catlin  v.  Valentine,  9  Paige, 
675 ;  Hackney  v.  State,  8  Ind.  494.  The  right,  nevertheless,  to  have  such 
a  business  restrained  is  not  absolute  and  unlimited,  but  is,  and  must  be 
in  the  nature  of  things,  subject  to  reasonable  limitations  which  have  re- 
gard to  the  rights  of  others  not  less  than  to  the  general  public  welfare. 
One  man's  comfort  and  enjoyment  with  reference  to  his  ownership  of  a 
parcel  of  land  cannot  be  considered  by  itself  distinct  from  the  desires  and 
interests  of  his  neighbors,  as  otherwise  the  wishes  of  one  might  control  a 
whole  community,  and  the  person  most  ready  to  complain  might  regulate 
to  suit  himself,  the  business  that  should  be  carried  on  in  his  neighborhood. 
In  a  crowded  city  some  annoyance  to  others  is  inseparable  from  almost 
any  employment,  and  while  the  proximity  of  the  stables  of  the  dealers  in 
horses,  or  of  the  shops  of  workers  in  iron  or  tin,  seems  an  intolerable 
nuisance  to  one,  another  is  annoyed  and  incommoded,  though  in  less 
degree,  by  the  bundles  and  boxes  of  the  dealer  in  dry  goods,  and  the 
noise  and  jar  of  the  wagons  which  deliver  and  remove  them.  Indeed, 
every  kind  of  business  is  generally  regarded  as  undesirable  in  the  parts 
of  a  city  occupied  most  exclusively  by  dwellings,  and  the  establishment 
of  the  most  cleanly  and  quiet  warehouse  might,  in  some  neighborhoods, 

if  a  person  \\\i\\  a  barrel-organ  or  bag-pipes  were  to  station  himself  under 
one's  window  all  day;  that  would  be  a  nuisance.  But  when  he  is  going 
through  a  city,  you  know,  he  will  stop  ten  minutes  at  one  place  and  ten 
minutes  at  another,  and  so  he  will  go  on  all  day.  If  the  one  sort  of  nuisance 
cfnild  be  restrained,  I  do  not  see  why  the  other  could  not.  There  is  a  dis- 
linclifin,  no  doubt;  the  one  interferes  with  the  soil,  the  other  does  not 
involve  any  interference  with  the  soil.  T  do  not  see  in  point  of  principle  that 
llii-<  distinction  makes  any  great  difference."  Per  Lord  Chancellor  Ckanworth, 
in  Alty.  f;en.  v.  SliefTield  Gas  Consumers'  Co.,  18.53,  3  DeG.  M.  &  G.  304,  336; 
hcv  also,  Harrison  v.  Southark  and  Vauxhall  Water  Company,  1891,  L.  R. 
2  Ch.  Div.  409. 


CHAP.  1.]  GILBERT  v.  SIIOWERMAN  757 

give  serious  offense  and  cause  great  annoyance  to  the  inhabitants.  This 
cannot  be  otherwise  so  long  as  the  tastes,  desires,  judgments  and  interests 
of  men  differ  as  they  do,  and  no  rule  of  law  can  be  just  which,  in  en- 
deavoring to  protect  the  interests  and  subserve  the  wishes  of  a  com- 
plaining party,  fails  to  have  equal  regard  to  the  interests  and  wishes  of 
others.  The  true  principle  has  been  said  by  an  eminent  jurist  to  be  one 
"growing  out  of  the  nature  of  well  ordered  civil  society,  that  every 
holder  of  property,  however  absolute  and  unqualified  may  be  his  title, 
holds  it  under  the  implied  liability  that  his  use  of  it  shall  not  be  in- 
jurious to  the  equal  enjoyment  of  others  having  an  equal  right  to  the 
enjoyment  of  their  property,  nor  injurious  to  the  rights  of  the  community. 
All  property  is  held  subject  to  those  general  regulations  which  are 
necessary  to  the  common  good  and  general  welfare.  Rights  of  property, 
like  all  other  social  and  conventional  rights,  are  subject  to  such  reasonable 
limitations  in  their  enjoyment  as  shall  prevent  them  from  being  injurious, 
and  to  such  reasonable  restraints  and  regulations  established  by  law  as 
the  legislature,  under  the  governing  and  controlling  power  vested  in  them 
by  the  constitution,  may  think  necessary  and  expedient." — Shaw^  Ch.J., 
in  Commonwealth  v.  Alger,  7  Cush.  84. 

In  the  case  before  us  we  find  that  the  defendants  are  carrying  on  a 
business  not  calculated  to  be  especially  annoying,  except  to  the  occupants 
of  dwellings.  They  chose  for  its  establishment  a  locality  where  all  the 
buildings  had  been  constructed  for  purposes  other  than  for  residence. 
Families,  to  some  extent,  occupied  these  buildings,  but  their  occupation 
was  secondary  to  the  main  object  of  their  construction,  and  we  must 
suppose  that  it  was  generally  for  reasons  which  precluded  the  choice  of  a 
more  desirable  neighborhood.  The  number  of  these  families,  moreover, 
was  decreasing,  and  in  view  of  the  size  of  the  block,  was  really  insignifi- 
cant at  the  time  this  machinery  was  put  in.  Some  kinds  of  business  were 
then  carried  on  in  the  block,  which  were  likely  to  be  equally  offensive  to 
adjoining  proprietors  with  that  of  the  defendants,  and  it  is  not  shown 
that  any  complaint  was  made  of  them.  In  view  of  these  facts  we  think 
it  is  not  shown  that  the  defendants  were  bound  to  know  they  were  in- 
vading the  legal  rights  of  other  persons  when  they  established  their 
present  business,  nor  can  we  say  that  the  evidence  satisfies  us  that  they 
selected  an  unsuitable  locality  for  the  purpose. 

We  cannot  shut  our  eyes  to  the  obvious  truth  that  if  the  running 
of  this  mill  can  be  enjoined,  almost  any  manufactory  in  any  of  our 
cities  can  be  enjoined  upon  similar  reasons.  Some  resident  must  be  in- 
commoded or  annoyed  by  almost  any  of  them.  In  the  heaviest  bvisiness 
quarters  and  among  the  most  offensive  trades  of  every  city,  will  be 
found  persons  who,  from  motives  of  convenience,  economy  or  necessity, 
have  taken  up  their  abode ;  but  in  the  administration  of  equitable  police, 
the  greater  and  more  general  interests  must  be  regarded  rather  than  the 
inferior  and  sj)ecial.  The  welfare  of  community  cannot  be  otherwise 
subserved  and  its  necessities  provided  for.     Minor  inconveniences  must 


758  GILBERT  v.  SHOWERMAN  [part  n. 

be  remedied  by  actions  for  the  recovery  of  damages  rather  than  by  the 
severe  process  of  injunction. 

On  the  whole  case  we  are  of  opinion  that  the  complainant,  having 
taken  up  his  residence  in  a  portion  of  the  city  mainly  appropriated  to 
business  purposes,  cannot  complain  of  the  establishment  of  any  new 
business  near  him,  provided  such  new  business  is  not  in  itself  objection- 
able as  compared  with  those  already  established,  and  is  carried  on  in  a 
proper  manner.  We  do  not  find  from  the  evidence  that  the  business  of 
defendants  was  thus  objectionable,  or  that  in  the  manner  of  conducting 
it  there  is  special  ground  of  complaint.  And  the  decree  dismissing  the 
bill  must,  therefore,  be  affirmed  with  costs.  But  the  dismissal  is  to  be 
without  prejudice  to  any  proceeding  the  complainant  may  be  advised  to 
take  at  law. 

The  other  justices  concurred.* 

^  Where  the  occupier  of  lands  grants  a  license  to  another  to  do  certain  acts  on 
the  land,  and  the  licensee  in  doing  them  commits  a  nuisance,  the  occupier  may 
be  made  a  defendant  to  a  suit  to  restrain  the  nuisance.  White  v.  Jameson, 
1873,  L.  R.,  18  Eq.  303.  A  tenant  may  bring  a  bill  to  enjoin  a  nuisance  af- 
fecting the  demised  property  during  his  tenancy;  while  the  landlord  protects 
his  reversion  in  like  manner.  Shelfer  v.  London  Electric  Lighting  Company, 
1895,  1  Ch.  Div.  287.  But  in  such  a  ease  the  landlord  must  show  injury  to 
the  reversion  as  distinguished  from  the  tenancy,  Jones  v.  Chappell,  1875,  L.  R. 
20  Eq.  539. 

"My  Lords,  in  matters  of  this  description  it  appears  to  me  that  it  is  a  very 
desirable  thing  to  mark  the  difference  between  an  action  brought  for  a  nuisance 
on  the  ground  that  the  alleged  nuisance  produces  material  injury  to  the 
property,  and  an  action  brought  for  a  nuisance  on  the  ground  that 
the  thing  alleged  to  be  a  nuisance  is  productive  of  sensible  personal 
discomfort.  With  regard  to  the  latter,  namely,  the  personal  inconvenience 
and  interference  with  one's  enjoyment,  one's  quiet,  one's  personal  free- 
dom, anything  that  discomposes  or  injuriously  affects  the  senses  or  the 
nerves,  whether  that  may  or  may  not  be  denominated  a  nuisance,  must  un- 
doubtedly depend  greatly  on  the  circumstances  of  the  place  where  the  thing 
complained  of  actually  occurs.  If  a  man  lives  in  a  town,  it  is  necessary  that 
he  should  subject  himself  to  the  consequences  of  those  operations  of  trade  which 
may  be  carried  on  in  his  immediate  locality,  which  are  actually  necessary  for 
trade  and  commerce,  and  also  for  the  enjoyment  of  property,  and  for  the  benefit 
of  the  inhabitants  of  the  town  and  of  the  public  at  large.  If  a  man  lives  in  a 
street  where  there  are  numerous  shops,  and  a  shop  is  opened  next  door  to  him, 
which  is  carried  on  in  a  fair  and  reasonable  way,  he  has  no  ground  for  com- 
plaint, because  to  himself  individually  there,  may  arise  much  discomfort  from 
tlie  trade  carried  on  in  the  shop.  But  when  an  occupation  is  carried  on  by 
one  person  in  tlie  neighborhood  of  another,  and  the  result  of  that  trade,  or 
f)ccupatiori,  or  business,  is  a  material  injury  to  pro])erty,  then  there  unques- 
tioniibly  arises  a  very  different  consideration.  1  think,  my  Lords,  that  in  a  case 
of  tliat  (lesfrription,  the  submission  which  is  required  from  persons  living  in 
society  to  that  amount  of  discomfort  which  may  be  necessary  for  the  legitimate 
and  free  exercise  of  the  trade  of  their  neighbors,  would  not  apply  to  circum- 


CHAP.  I.]  MOUNTAIN  COPPER  CO.  v.  U.  S.  759 

MOUNTAIN  COPPER  CO.  v.  UNITED  STATES. 

In  the  United  States  Circuit  Court  of  Appeals,  Ninth  Circuit,  1906. 

[142  Federal  Reporter  625.] 

The  United  States,  in  its  capacity  of  landowner,  brings  a  bill  to  enjoin 
the  defendant  Copper  company  from  continuing  to  injure  and  destroy 
the  timber  and  other  vegetation  upon  the  complainant's  land  by  the  fumes 
and  smoke  produced  in  the  process  of  roasting  and  burning  its  ores. 

Ross,  Circuit  Judge.' 

We  have,  then,  the  ownership  in  the  complainant  of  a  little  over 
4,000  acres  of  land  within  the  damaged  zone,  mountainous  in  character, 
with  little  or  no  soil,  practically  worthless  for  agriculture  or  horticulture, 
upon  which  most  of  such  trees  and  undergrowth  as  existed  had,  prior  to 
the  commencement  of  this  suit,  been  killed  by  the  fumes  generated  by 
the  appellant  company  (for  which  it  is,  of  course,  liable  in  damages  for 
whatever  they  may  have  been  worth),  and  upon  which  but  little  more  vege- 
tation of  any  kind  remains,  susceptible  of  destruction.  In  view  of  these 
facts,  about  which  there  can  be  no  question  upon  the  record,  can  it  be 
doubted  that  the  maximum  injury  that  can  result  to  the  lands  of  the  com- 
plainant embraced  by  the  bill  is  but  a  mere  trifle  in  comparison  to  the 
loss  inflicted  by  the  injunction  in  question  upon  the  appellant  company 
and  those  dependent  upon  and  benefited  by  it  ?  And,  such  being  the  case, 
would  it  be  a  wise  exercise  of  the  sound  discretion  we  are  called  upon  to 
exercise  to  sustain  such  injunction  ?  We  are  of  the  opinion  that  it  would 
not  be,  and  we  are  not  without  abundant  authority  to  sustain  that 
position. 

No  one,  we  apprehend,  will  contend  that  the  smelting  of  copper  ores  is, 
in  and  of  itself,  unlawful.  On  the  contrary,  it  has  become  one  of  the 
most  useful  and  necessary  employments,  especially  since  the  use  of 
copper,  in  its  manifold  forms,  has  increased  so  enormously,  to  the  benefit, 
not  only  of  those  actually  producing  it,  but  to  the  state,  nation,  and  world 
at  large.  Brickmaking  is  also  a  useful  and  legitimate  employment.  In 
considering  and  deciding  a  case  of  that  sort  Mr.  Justice  Agnew,  in  de- 
livering the  opinion  of  the  Supreme  Court  of  Pennsylvania,  in  Hucken- 
stine's  Appeal,  70  Pa.  102,  106,  ]0  Am.  Rep.  669,  said: 

"  It,  as  many  other  useful  employments  do,  may  produce  some  discom- 
fort, and  even  some  injury,  to  those  near  by.  But  it  does  not  follow  that 
a  chancellor  would  enjoin  therefore.  The  heat,  smoke,  and  vapor  of  a 
brick  kiln  cannot  compare  with  those  of  many  manufactories  carried  on 

stances  the  immediate  result  of  which  is  sensible  injury  to  the  value  of  the 
property."  Per  Lord  Westbury,  in  St.  Helen's  Smelting  Co.  v.  Tipping,  1865, 
11   H.  L.   C.   642,   650. 

^  A  part  only  of  1^he  opinion  is  printed. 


760  MOUNTAIN  COPPER  CO.  v.  U.  S.  [part  ii. 

in  the  very  heart  of  such  busy  cities  as  Pittsburg  and  Allegheny.  A 
court,  exercising  the  power  of  a  chancellor,  whose  arm  may  fall  with 
crushing  force  upon  the  every-day  business  of  men,  destroying  lawful 
means  of  support,  and  diverting  property  from  legitimate  uses,  cannot 
approach  such  cases  as  this  with  too  much  caution.  Its  aid  is  not  of 
right,  but  of  grace,  and  it  must  be  sure  that  the  exercise  of  this  kingly 
power  is  just,  wise,  and  proper,  before  it  takes  from  a  citizen  his  means 
of  livelihood,  and  destroys  the  value  of  his  property  for  legitimate  uses."  ' 

In  Tuttle  V.  Church,  C.  C,  5o  Fed.  422,  an  injunction  was  sought  to 
restrain  the  defendants  from  the  manufacture  of  fish  oil  and  fertilizers, 
on  the  ground  that  the  smoke  and  offensive  odors  from  the  defendants' 
factory  blew  over  the  complainants'  dwelling,  thereby  corrupting  the  air, 
destroying  the  comfortable  and  convenient  use  of  the  premises,  and 
diminishing  their  value.  The  defendants  employed  450  men  in  their 
works,  and  their  plant  was  valued  at  $300,000.  The  complainants'  prop- 
erty cost  them,  with  improvements,  $2,750,  and  they  had  offered  to  sell  it 
for  $3,500.  Other  facts  are  stated  in  the  opinion  in  the  case.  Judge 
Colt,  in  refusing  the  injunction  sought,  said,  among  other  things : 

"  A  motion  for  an  injunction  is  addressed  to  the  sound  discretion  of  the 
court,  guided  by  certain  established  rules.  This  means  that  the  court  is 
to  consider  all  the  circumstances  of  each  case  before  it  will  exercise  this 
extraordinary  remedy.  Among  the  considerations  which  should  influence 
a  chancellor  is  the  relative  effect  upon  the  parties  of  granting  or  refusing 
the  injunction.  Unless  the  public  good  calls  for  the  injunction  to  issue, 
it  should  not  be  granted  where  a  large  number  of  people  are  in  favor  of 
the  acts  to  be  restrained  and  no  serious  damage  to  individuals  is  made  to 
appear.  Where  the  right  of  law  is  doubtful,  the  ease  resolves  itself  into 
a  question  of  comparative  injury — whether  the  defendants  will  be  more 
injured  by  the  injunction  being  granted,  or  the  plaintiffs  by  its  being 
withheld.  In  the  present  case  the  effect  of  an  injunction,  according  to 
the  evidence,  will  be  to  close  the  defendants'  works,  destroy  their  business, 
and  thereby  cause  the  loss  of  a  large  amount  of  invested  capital,  while  the 
injury  to  the  plaintiffs  if  the  injunction  is  refused,  is  comparatively 
slight" — citing  a  number  of  cases. 

The  nuisance  complained  of  in  Powell  v.  Bentley  &  Gerwig  Furniture 
Co.,  W.  Va.,  12  S.  E.  1085,  12  L.  R.  A.  53,  was  the  noise  of  the  factory. 
The  court  there  said: 

"  Although  a  court  of  equity  in  such  cases  follows  precedent,  and  goes 
by  rule  as  far  as  it  can,  yet  it  follows  its  own  rules — and  among  them  is 
the  one  that  to  abate  or  restrain  in  case  of  nuisance  is  not  a  matter  of 
strict  right,  but  of  orderly  and  reasonable  discretion,  according  to  the 
right  of  the  particular  case — and  hence  will  refuse  relief  and  send  the 
party  to  a  court  of  law  when  damages  would  be  a  fairer  approximation 
to  common  justice,  because  to  silence  a  useful  and  costly  factory  is  often 

'  Tho  fourt  here  quotes  from  Demarest  v.  Hardham,  1881,  34  N.  J.  Eq. 
4(')'J.      See    note   to  page   753. 


CHAP.  I.]  MOUNTAIN  COPPER  CO.  v.  U.  S.  761 

a  matter  of  serious  moment  to  the  state  and  town,  as  well  as  to  the 
owner." 

Indeed,  that  the  comparative  convenience  or  inconvenience  to  the 
parties  from  the  granting  or  withholding  the  injunction  sought  should 
be  considered,  and  that  none  should  be  granted  whenever  it  would  operate 
oppressively  or  inequitably,  or  contrary  to  the  real  justice  of  the  case, 
is  the  well-established  doctrine,  and  we  need  hardly  multiply  authori- 
ties to  that  effect.  Amelia  Milling  Co.  v.  Tennessee  Coal  Co.,  C.  C,  123 
Fed.  811;  Sellers  v.  Parvis,  C.  C,  30  Fed.  166;  Peterson  v.  City  of 
Santa  Eosa,  119  Cal.  391,  51  Pac.  557;  1  Spelling  on  Injunctions,  §  417; 
2  Story's  Eq.  Jur.  §  959 ;  Kerr  on  Injunctions,  231. 

In  Madison  v.  Ducktown  Sulphur,  Copijer  &  Iron  Co.,  Tenn.,  83  S. 
W.  658,  it  appeared  that  several  farmers  had  brought  suit  to  enjoin  the 
operation  of  a  copper  smelting  plant  because  of  injury  to  their  lands  by 
the  fumes.  The  plant  was  in  a  basin  of  the  mountains.  The  com- 
plainants' farms  were  in  the  surrounding  hills,  and  were  far  more 
seriously  injured  than  have  been  the  lands  of  the  United  States  involved 
in  the  present  case;  for  they  had  timber  and  crops  which  were  prac- 
tically destroyed.  In  that  case  it  was  found  that  the  defendant  company 
was  conducting  its  business  in  a  lawful  way,  without  any  purpose  to 
injure  any  of  the  complainants,  and  was  following  the  only  known 
method  by  which  copper  smelting  could  be  successfully  carried  on,  but 
was  unable  to  dispose  of  the  sulphurous  fumes,  and  that  there  was  no 
more  remote  place  to  which  its  operations  could  be  transferred ;  that  the 
defendant  employed  about  2,500  men  in  its  works,  supporting  about  12,000 
people,  whereas,  before  the  commencement  of  their  operations,  the  popu- 
lation of  the  vicinity  did  not  exceed  200;  that  the  company  paid  to  its 
employees  about  $1,000,000  annually  for  wages,  and  paid  about  one-half 
of  the  taxes  of  the  county  in  which  its  property  was  situated,  besides  pay- 
ing out  a  large  amount  for  supplies;  that  if  the  injunction  sought  were 
granted  the  defendant  company  would  be  compelled  to  stop  the  operation 
of  its  plant  and  its  property  would  become  valueless.  The  facts  in  that 
case,  which  arose  in  Tennessee,  were,  therefore,  strikingly  similar  to  those 
in  the  case  at  bar,  except  for  the  important  difference  that  there  the 
complainants  were  actual  resident  proprietors,  who  had  suffered  serious 
pecuniary  loss.  The  Supreme  Court  of  Tennessee  declared  that  the  con- 
trolling principle  in  such  cases  is — 

"  That  the  granting  of  an  injunction  is  not  a  matter  of  absolute  right, 
but  rests  in  the  sound  discretion  of  the  court,  to  be  determined  on  a  con- 
sideration of  all  of  the  special  circumstances  of  each  case,  and  the  situa- 
tion and  surroundings  of  the  parties  with  a  view  to  effect  the  ends  of 
justice,  A  judgment  for  damages  in  this  class  of  cases  is  a  matter  of 
absolute  right,  where  injury  is  shown.  A  decree  for  an  injunction  is 
a  matter  of  sound  legal  discretion,  to  be  granted  or  withheld  as  that  dis- 
cretion shall  dictate,  after  a  full  and  careful  consideration  of  every 
element  appertaining  to  the  injury." 


762  MOUNTAIN  COPPER  CO.  v.  U.  S.  [part  ii. 

And  after  citing  numerous  authorities  in  support  of  that  principle, 
thus  applied  it  to  the  case  then  before  the  court: 

"  The  question  now  to  be  considered  is,  what  is  the  proper  exercise  of 
discretion,  under  the  facts  appearing  in  the  present  case?  Shall  the 
complainants  be  granted,  in  the  way  of  damages,  the  full  measure  of 
relief  to  which  their  injuries  entitle  them,  or  shall  we  go  further,  and 
grant  their  request  to  blot  out  two  great  mining  and  manufacturing  en- 
terprises, destroy  half  of  the  taxable  values  of  a  county,  and  drive  more 
than  10,000  people  from  their  homes?  We  think  there  can  be  no  doubt 
as  to  what  the  true  answer  to  this  question  should  be.  In  order  to 
protect  by  injunction  several  small  tracts  of  land,  aggregating  in  value 
less  than  $1,000,  we  are  asked  to  destroy  other  property  worth  nearly 
$2,000,000,  and  wreck  two  great  mining  and  manufacturing  enterprises 
that  are  engaged  in  work  of  very  great  importance,  not  only  to  their 
owners,  but  to  the  State,  and  to  the  whole  country  as  well,  and  to  de- 
populate a  large  town,  and  deprive  thousands  of  working  people  of  their 
homes  and  livelihood,  and  scatter  them  broadcast.  The  result  would  be 
practically  a  confiscation  of  the  property  of  the  defendants  for  the  bene- 
fit of  the  complainants — an  appropriation  without  compensation.  The  de- 
fendants cannot  reduce  their  ores  in  a  manner  different  from  that  they 
are  now  employing,  and  there  is  no  more  remote  place  to  which  they  can 
remove.  The  decree  asked  for  would  deprive  them  of  all  their  rights. 
We  appreciate  the  argument  based  upon  the  fact  that  the  homes  of  the 
complainants  who  live  on  the  small  tracts  of  land  referred  to  are  not 
so  comfortable  and  useful  to  their  owners  as  they  were  before  they  were 
affected  by  the  smoke  complained  of,  and  we  are  deeply  sensible  of  the 
truth  of  the  proposition  that  no  man  is  entitled  to  any  more  rights  than 
another  on  the  ground  that  he  has  or  owns  more  property  than  that  other. 
But  in  a  case  of  conflicting  rights,  where  neither  party  can  enjoy  his  own 
without  in  some  measure  restricting  the  liberty  of  the  other  in  the  use  of 
the  property,  the  law  must  make  the  best  arrangement  it  can  between  the 
contending  parties,  with  a  view  to  preserving  to  each  one  the  largest 
measure  of  liberty  possible  under  the  circumstances.  We  see  no  escape 
from  the  conclusion  in  the  present  case  that  the  only  proper  decree  is  to 
allow  the  complainants  a  reference  for  the  ascertainment  of  damages,  and 
that  the  injunction  must  be  denied  to  them,  except  in  the  qualified 
manner  indicated." 

In  the  case  before  us  the  land  of  the  complainant  within  the  damaged 
zone  is,  according  to  the  evidence,  not  timber  land,  and  is  practically 
worthless  for  agricultural  and  horticultural  purposes,  for  the  reason  that 
it  has  little  or  no  soil.  Most  of  such  trees  and  underbrush  that  has  stood 
thereon  had  been  killed  prior  to  the  beginning  of  this  suit,  and  such  vege- 
tation as  then  remained  was  of  very  small  value.  The  testimony  in  re- 
spect to  the  lack  of  value  in  this  land  of  the  complainant  is  corroborated 
by  the  circumstance  ilia  I,  iilthongh  it  is  in  close  proximity  to  tlic  railroad 
connecting  the  cities  of  San   Francisco  and  Portland,  and  but  a  com- 


CHAP.  I.]       SPKINGIIEAD  SPINNING  CO.  v.  EILEY  763 

paratively  short  distance  from  the  towns  of  Redding  and  Shasta,  yet  no 
purchaser  seems  to  have  taken  any  of  it  at  the  government  price  of  $1.25 
per  acre,  though  it  has  been  open  to  purchasers  for  about  50  years,  nor 
did  a  single  homesteader,  so  far  as  appears,  ever  settle  upon  any  of  it 
during  all  of  the  years  it  was  offered  by  the  government  as  a  gift  to 
such  settlers. 

For  the  reasons  stated  the  judgment  is  reversed,  and  the  cause  re- 
manded, with  directions  to  the  court  below  to  dismiss  the  bill. 


Section  4.    Labor  Disputes. 


SPEINGHEAD  SPINNING  CO.  v.  RILEY. 

In  Chancery,  before  Sir  Richard  Malins,  V.  C,  1868. 

[L.  R.,  6  Eq.  551.] 

July  31.  Sir  R.  Malins,  V.  C,  after  stating  the  facts,  and  referring 
to  the  Acts  6  Geo.  4,  c.  129,  the  Masters  and  Workmen's  Act,  and  the  Act 
of  1859,  20  &  21  Vist.  c.  43,  continued  :— 

These  Acts  have  received  an  authoritative  construction  in  the  direc- 
tion of  Mr.  Baron  Bramwell  to  the  jury  in  the  case  of  Reg.  v.  Druitt, 
16  L.  T.  N.  S.  855.  The  substance  of  that  judgment,  in  which  I 
entirely  concur,  is  this : — That  every  man  is  at  liberty  to  induce  others, 
in  the  words  of  the  Act  of  Parliament,  "  by  persuasion  or  otherwise," 
to  enter  into  a  combination  to  keep  up  the  price  of  wages,  or  the  like; 
but  directly  he  enters  into  a  combination  which  has  as  its  object  intimi- 
dation or  violence,  or  interfering  with  the  perfect  freedom  of  action  bf 
another  man,  it  then  becomes  an  offence  not  only  at  common  law,  but 
also  an  offence  punishable  by  the  express  enactment  of  the  Act  6  Geo. 
4,  c.  129.  It  is  clear,  therefore,  that  the  printing  and  publishing  of 
these  placards  and  advertisements  by  the  Defendants,  admittedly  for 
the  purpose  of  intimidating  workmen  from  entering  into  the  service 
of  the  Plaintiffs,  are  unlawful  acts,  punishable  by  imprisonment  under 
the  6  Geo.  4,  c.  129,  and  a  crime  at  common  law. 

But  if  these  acts  amount  to  the  commission  of  a  crime  only,  it  is  clear 
that  this  Court  has  no  jurisdiction  to  restrain  them.  In  the  celebrated 
case  of  Gee  v.  Pritehard,  2  Sw.  402,  413,  the  object  of  which  was  to 
restrain  the  publication  of  letters  written  by  the  Plaintiff  to  the  Defend- 
ant, Lord  Eldon  s^ys :     "  The  publication  of  a  libel  is  a  crime,  and  I 


764  SPKmGHEAD  SPINNING  CO.  v.  EILEY         [part  ii. 

have  no  jurisdiction  to  prevent  the  commission  of  crimes,  excepting,  of 
course,  such  cases  as  belong  to  the  protection  of  infants  where  a  dealing 
with  an  infant  may  amount  to  crime — an  exception  arising  from  that 
peculiar  jurisdiction  of  this  Court."  Further  on  Lord  Eldon  says: 
"  The  question  will  be,  whether  the  bill  has  stated  facts  of  which  the 
Court  can  take  notice,  as  a  case  of  civil  property,  which  it  is  bound  to 
protect." 

Lord  Campbell,  in  the  case  of  the  Emperor  of  Austria  v.  Day,  3  D. 
E.  &  J.  239,  quotes  that  passage  with  approbation. 

The  jurisdiction  of  this  Court  is  to  protect  property,  and  it  will  inter- 
fere by  injunction  to  stay  any  proceedings,  whether  connected  with  crime 
or  not,  which  go  to  the  immediate,  or  tend  to  the  ultimate,  destruction  of 
property,  or  to  make  it  less  valuable  or  comfortable  for  use  or  occupa- 
tion. It  will  interfere  to  prevent  the  destruction  of  property,  as  shown  by 
Lowndes  v.  Bettle,  33  L.  J.  Ch.  451. 

The  familiar  cases  of  light  and  air,  nuisance,  and  trade-marks, 
will  illustrate  what  I  have  said,  namely,  that  the  Court  will  interfere 
where  the  acts  complained  of  go  to  the  destruction  or  material  diminu- 
tion of  the  value  of  property.  It  is  distinctly  charged  by  this  bill,  and  it 
is  consequently  admitted  by  the  demurrers,  that  the  acts  of  the  Defen- 
dants which  are  complained  of  do  tend  to  the  immediate  destruction  of 
the  value  of  the  Plaintiffs'  property.  The  30th  and  31st  paragraphs  of  the 
bill  go  distinctly  to  this  point,  and  in  the  17th  paragraph  it  is  stated 
that  these  placards  and  advertisements  are,  in  fact,  part  of  a  scheme 
of  the  Defendants  whereby  they,  by  threats  and  intimidation,  prevent 
persons  from  hiring  themselves  to  or  accepting  work  from  the  Plain- 
tiffs. If  the  Defendants  Riley  and  Butterworth  had  carried  on  a  manu- 
factory in  the  neighbourhood  of  the  Plaintiffs'  works,  and  had  by  any 
process  poured  noxious  vapours  into  the  Plaintiffs'  mill  to  such  an  ex- 
tent as  to  render  it  Impossible  for  them  to  procure  workmen  to  carry  on 
their  operations,  that  would  have  been  a  nuisance  tending  to  the  destruc- 
tion of  the  Plaintiffs'  property  which  this  Court  would  have  restrained  by 
injunction;  and  so  it  would  if  the  Defendants  had,  by  darkening  their 
ancient  lights,  rendered  it  impossible  or  even  difficult  to  carry  on  their 
trade;  and  so  if  the  Defendants  had,  by  constructing  a  material  obstruc- 
tion, such  as  building  a  wall,  rendered  the  access  by  the  work- 
people of  the  Plaintiffs  to  their  mill  impossible.  Why  should  the 
Defendants  be  less  amenable  to  the  purisdiction  of  this  Court  because 
they  proceed  to  destroy  the  value  of  the  Plaintiffs'  property  in  another 
but  not  less  efficacious  mode,  namely,  by  their  threats  and  intimidation 
rendering  it  impossible  for  the  Plaintiffs  to  obtain  workmen,  without 
whose  assistance  the  property  becomes  utterly  valueless  for  the  purposes 
of  their  trade? 

The  truth,  I  apprehend,  is,  that  the  Court  will  interfere  to  prevent 
acts  amounting  to  crime,  if  they  do  not  stop  at  crime,  but  also  go  to  the 
destruction  or  deterioration  of  the  value  of  property.     That  was  the 


CHAP.  I.]       SPKINGHEAD  SPINNING  CO.  v.  RILEY  765 

principle  on  which  the  Court  restrained  the  proceedings  of  M.  Kossuth, 
with  regard  to  the  Hungarian  notes  in  the  case  of  the  Emperor  of  Austria 
V.  Day,  3  D.  F.  &  J.  217.  Lord  Chancellor  Campbell  says,  3  D.  F.  &  J. 
232: — "I  agree  that  the  jurisdiction  of  this  Court  in  a  case  of  this  nature 
rests  upon  injury  to  property  actual  or  prospective,  and  that  this  Court 
has  no  jurisdiction  to  prevent  the  commission  of  acts  which  are  merely 
criminal  or  merely  illegal,  and  do  not  affect  any  rights  of  property,  but  I 
think  there  are  here  rights  of  property  quite  sufficient  to  found  jurisdic- 
tion in  this  Court.  I  do  not  agree  to  the  proposition  that  there  is  no 
remedy  in  this  Court  if  there  be  no  remedy  at  law,  and  still  less  do  I 
agree  to  the  proposition  that  this  Court  is  bound  to  send  a  matter  of  this 
description  to  be  tried  at  law." 

The  same  rule  is  in  effect  laid  down  by  Lord  Eldon  in  the  celebrated 
case  of  Macaulay  v.  Shackell,  I  Bli.  N.  S.  96,  127.  Lord  Eldon  there 
says: — "The  Court  of  Equity  has  no  criminal  jurisdiction,  but  it  lends 
its  assistance  to  a  man  who  has,  in  the  view  of  the  law,  a  right  of  prop- 
erty,  and  who  makes  out  that  an  action  at  law  will  not  be  a  sufficient  rem- 
edy and  protection  against  intruding  upon  his  publication." 

In  the  present  case,  the  acts  complained  of  are  illegal  and  criminal  by 
the  Act  of  Geo.  4,  and  it  is  admitted  by  the  demurrers  that  they  were 
designedly  done  as  part  of  a  scheme,  by  threats  and  intimidation,  to  pre- 
vent persons  from  accepting  work  from  the  Plaintiffs,  and,  as  a  conse- 
quence, to  destroy  the  value  of  the  Plaintiffs'  property.  It  is,  in  my 
opinion,  within  the  jurisdiction  of  this  Court  to  prevent  such  or  any  other 
mode  of  destroying  property,  and  the  demurrers  must,  therefore,  be  over- 
ruled. 

The  Defendant  Carrodus,  as  stated  in  the  bill,  persisted  in  re- 
printing and  re-publishing  the  placards  and  advertisements  after  a 
warning  from  the  Plaintiffs,  and  his  demurrer  must  consequently  be 
overruled. 

In  coming  to  this  conclusion  I  desire  to  be  understood  as  deciding 
simply  on  what  appears  upon  this  bill  and  these  demurrers.  For  the 
reasons  I  have  stated  I  overrule  these  demurrers,  because  the  bill  states, 
and  the  demurrers  admit,  acts  amounting  to  the  destruction  of  property. 
Upon  the  general  question  whether  this  Court  can  interfere  to  prevent 
.  these  unlawful  proceedings  by  workmen  issuing  placards  amounting  to 
intimidation,  and  whether  acts  of  intimidation  generally  would  go  to  the 
destruction  of  property,  that  will  probably  have  ultimately  to  be  decided 
at  the  hearing  of  this  cause.  In  the  meantime  I  would  only  make  this 
observation,  that  by  the  Act  of  Parliament  it  is  recited  that  all  such 
proceedings  are  injurious  to  trade  and  commerce,  and  dangerous  to  the 
security  and  personal  freedom  of  individual  workmen,  as  well  as  the 
security  of  the  property  and  persons  of  the  public  at  large;  and  if  it 
should  turn  out  that  this  Court  has  jurisdiction  to  prevent  these 
misguided  and  misled  workmen  from  committing  these  acts  of  in- 
timidation, which  go  to  the  destruction  of  that  property  which  is  the 


766  SHEKRY  v.  PERKINS  [part  iu 

source  of  their  own  support  and  comfort  in  life,  I  can  only  say  that 
it  will  be  one  of  the  most  beneficial  jurisdictions  that  this  Court  ever 
exercised. 

With  regard  to  the  costs,  I  do  not  intend,  considering  the  novelty  and 
importance  of  the  question  raised  by  this  bill  and  these  demurrers,  to 
overrule  them  with  costs  in  the  ordinary  course,  but  I  shall  reserve  the 
costs. 


SHERRY  AND  OTHERS  V.  PERKINS  and  another. 

In  the  Supreme  Judicial  Court  of  Massachusetts,  1888. 
[147  Massachusetts  212.] 

Bill  in  equity,  filed  April  20,  1887,  alleging  that  the  first-named  plain- 
tiff was  engaged  in  the  business  of  manufacturing  boots  and  shoes  in 
Lynn,  and  that  he  had  admitted  the  other  plaintiffs,  who  were  in  his 
employment  as  operatives,  to  share  in  the  profits  of  the  business;  that 
there  was  a  voluntary  association  in  Lynn  called  the  Lasters'  Protective 
Union,  composed  of  persons  engaged  in  lasting  boots  and  shoes,  of  which 
the  first-named  defendant  was  the  president,  and  the  other  defendant, 
Charles  H.  Leach,  was  the  secretary;  that  on  January  5,  1887,  Leach, 
acting  for  himself  and  Perkins,  called  upon  Sherry  to  inquire  as  to  the 
wages  of  his  lasters,  and  was  told  that  such  wages  were  to  be  fixed 
by  the  lasters ;  that  on  January  8,  1887,  certain  lasters  left  the  plain- 
tiff's employment,  giving  as  a  reason  therefore  that  they  did  not  dare  to 
work  for  them  further  on  account  of  the  defendants;  that,  in  order  to 
intimidate  others  from  taking  their  places  and  to  prevent  such  lasters 
from  re-engaging  in  their  employment,  the  defendants,  on  January  8, 
1887,  with  the  assent  of  the  association  and  out  of  its  moneys,  caused 
to  be  carried  in  front  of  Sherry's  factory,  by  a  boy  hired  for  that  purpose, 
a  banner  bearing  the  following  inscription :  "Lasters  are  requested  to  keep 
away  from  P.  P.  Sherry's.    Per  order  L.  P.  IT." 

The  bill  further  alleged,  that,  because  of  such  banners,  crowds  of  people 
gathered  in  front  of  the  factory  when  the  lasters  left  their  work;  that 
the  lasters  were  injured  and  threatened  with  bodily  harm  if  they  con- 
tinued in  the  plaintiff's  employment;  that  various  lasters,  whose  names 
were  given,  were  subsequently  called  upon  by  the  defendants,  and  so 


CHAP.  I.]  SHEKRY  V.  PERKINS  767 

intimidated  and  injured  that  one  of  them  was  confined  to  his  house  and 
another  left  the  plaintiff's  employment;  that  the  banner  and  the  acts 
of  the  defendants  were  part  of  a  scheme  to  prevent  persons  from  entering 
the  plaintiff's  employment,  and  that  the  banner  was  carried  in  front  of  the 
factory  until  March  22,  1887,  when  the  defendants,  with  a  like  purpose 
and  at  a  time  when  there  was  no  strike  in  the  factory  or  trouble  with 
the  operatives,  caused  another  banner  to  be  carried  in  like  manner  before 
the  factory,  with  the  following  inscription:  "Lasters  on  a  strike  and 
lasters  are  requested  to  keep  away  from  P.  P.  Sherry's  until  the  present 
trouble  is  settled.     Per  order  L.  P.  U." 

The  bill  also  alleged  that  Sherry  had  remonstrated  with  the  defendants 
without  effect ;  that  the  business  carried  on  by  the  plaintiffs  was  a  large 
one,  and  that  the  good-will  was  of  considerable  value,  both  of  which, 
if  the  defendants  were  permitted  to  continue,  would  be  seriously  injured 
and  destroyed. 

The  prayer  of  the  bill  was,  that  the  defendants  might  be  restrained  from 
making  such  banners,  and  from  causing  them  to  be  similarly  carried, 
and  for  further  relief. 

Hearing  before  C.  Allen,  J.,  who  found  as  facts,  that  members  of 
the  Lasters'  Protective  Union  entered  into  a  scheme,  by  threats  and 
intimidation,  to  prevent  persons  in  the  employment  of  the  plaintiffs 
as  lasters  from  continuing  in  such  employment,  and  in  like  manner  to 
prevent  other  persons  from  entering  into  such  employment  as  lasters; 
that  the  defendants  participated  in  this  scheme;  that  the  use  of  the 
banners  was  a  part  of  the  scheme ;  that  the  first  banner  was  carried 
from  January  8,  1887,  to  March  22,  1887,  and  the  second  banner 
from  March  22,  1887,  to  the  time  of  the  hearing;  and  that  the  plain- 
tiffs have  been  and  are  injured  in  their  business  and  property  thereby; 
and  the  judge  reported  the  case  for  the  consideration  of  the  full 
court. 

W.  Allen^  J.  The  case  finds  that  the  defendants  entered,  with 
others,  into  a  scheme,  by  threats  and  intimidations,  to  prevent  persons- 
in  the  employment  of  the  plaintiffs  from  continuing  in  such  employ- 
ment, and  to  prevent  others  from  entering  into  such  employment; 
that  the  banners  with  their  inscriptions  were  used  by  the  defendants- 
as  part  of  the  scheme;  and  that  the  plaintiffs  were  thereby  injured  in 
their  business  and  property. 

The  act  of  displaying  banners  with  devices,  as  a  means  of  threats- 
and  intimidation  to  prevent  persons  from  entering  into  or  continuing 
in  the  employment  of  the  plaintiffs,  was  injurious  to  the  plaintiffs,  and 
illegal  at  common  law  and  by  statute,  Pub.  Sts.  c.  74,  §  2 ;  Walker  v. 
Cronin,  107  Mass.  555.  We  think  that  the  plaintiffs  are  not  restricted 
to  their  remedy  by  an  action  at  law,  but  are  entitled  to  relief  by  in- 
junction. The  acts  and  the  injury  were  continuous.  The  banners 
were  used  more  than  three  months  before  the  filing  of  the  plaintiff's 
bill,  and  continued  to  be  used  at  the  time  of  the  hearing.     The  injury 


768  JERSEY  CITY  PRINTING  CO  v.  CASSIDY     [part  ii. 

was  to  the  plaintiff's  business,  and  adequate  remedy  could  not  be  given 
by  damages  in  a  suit  at  law. 

The  wrong  is  not,  as  argued  by  the  defendants'  counsel,  a  libel 
upon  the  plaintiffs'  business.  It  is  not  found  that  the  inscriptions 
upon  the  banners  were  false,  nor  do  they  appear  to  have  been  in  dis- 
paragement of  the  plaintiffs'  business.  The  scheme  in  pursuance  of 
which  the  banners  were  displayed  and  maintained  was  to  injure  the 
plaintiffs'  business,  not  by  defaming  it  to  the  public,  but  by  intimi- 
dating workmen,  so  as  to  deter  them  from  keeping  or  making  engage- 
ments with  the  plaintiffs.  The  banner  was  a  standing  menace  to  all 
who  were  or  wished  to  be  in  the  employment  of  the  plaintiffs,  to  de- 
ter them  from  entering  the  plaintiffs'  premises.  Maintaining  it  was 
a  continuous  unlawful  act,  injurious  to  the  plaintiffs'  business  and 
property,  and  was  a  nuisance  such  as  a  court  of  equity  will  grant  relief 
against..  Gilbert  i'.  Mickle,  4  Sandf.  Ch.  357;  Springhead  Spinning  Co. 
V.  Riley,  L.  R.  6  Eq.  551. 

Boston  Diatite  Co.  v.  Florence  Manuf.  Co.,  114  Mass.  69,  was  a  case 
of  defamation  only.  Some  of  the  language  in  Springhead  Spinning 
Co.  V.  Riley  has  been  criticised,  but  the  decision  has  not  been  overruled. 
See  Boston  Diatite  Co.  v.  Florence  Manuf.  Co.,  uhi  supra;  Prudential 
Assurance  Co.  v.  Knott,  L.  R.  10  Ch.  142 ;  Saxby  v.  Easterbrook,  3  C.  P. 
D.  339 ;  Thorley's  Cattle  Food  Co.  v.  Massam,  14  Ch.  D.  763 ;  Thomas  i'. 
Williams,  14  Ch.  D.  864;  Day  v.  Brownrigg,  10  Ch.  D.  294;  Gaskin  v. 
Balls,  13  Ch.  D.  324;  Hill  v.  Davies,  21  Ch.  D.  798;  Hermann  Loog  v. 
Bean,  26  Ch.  D.  306. 

Decree  for  the  plaintiffs. 


THE  JERSEY  CITl^  PRINTING  CO.  v.  CASSIDY  et  al. 

In  the  Court  of  Chancery  of  New  Jersey,  1902. 
[63  New  Jersey  Equity  759.] 

On  motion,  on  order  to  show  cause,  for  an  injunction  to  restrain  de- 
fendants, former  employes  of  the  complainant,  and  now  on  strike,  from 
unlawful  interference  with  the  complainant's  business,  the  employment 
of  worJsmen,  etc.    Heard  on  bill,  answer  and  affidavits. 

Upon  filing  the  bill  an  order  was  made  restraining  the  defendants 
"from  in  any  manner  knowingly  and  intentionally  causing  or  attempting 
to  cause  by  threats,  offers  of  money,  payment  of  money,  offering  to  pay 
or  the  payment  of  transportation  expenses,  inducements  or  persuasions 
to  any  f;niployo  or  the  coininainant  under  contract  to  render  service  to  it 
to  break  siicli  (•(nitriicl  liy  (iiiittiiig  such  service;  from  any  and  all  personal 


CHAP.  I.]       JEKSEY  CITY  PRINTING  CO.  v.  CASSIDY  769 

molestation  of  persons  willing  to  be  employed  by  complainant  with  intent 
to  coerce  such  persons  to  refrain  from  entering  such  employment;  from 
addressing  persons  willing  to  be  employed  by  complainant  against  their 
will  and  thereby  causing  them  personal  annoyance  with  a  view  to  per- 
suade them  to  refrain  from  such  employment;  from  loitering  or  picket- 
ing in  the  streets  near  the  premises  of  complainant,  Nos.  68  and  70  York 
street,  and  No.  37  ]\Iontgomery  street,  Jersey  City,  with  intent  to  procure 
the  personal  molestation  and  annoyance  of  persons  employed  or  willing  to 
be  employed  by  complainant  and  with  a  view  to  cause  persons  so  em- 
ployed to  quit  their  employment,  or  persons  willing  to  be  employed  by 
complainant  to  refrain  from  such  employment;  from  entering  the  prem- 
ises of  complainant,  Nos.  68  and  70  York  street,  Jersey  City,  against  its 
will  with  intent  to  interfere  with  its  business;  from  violence,  threats  of 
violence,  insults,  indecent  talk,  abusive  epithets  practiced  upon  any  per- 
sons without  their  consent  with  intent  to  coerce  them  to  refrain  from 
entering  the  employment  of  complainant,  or  to  leave  its  employment." 

Stevenson^  V.C.  (orally). 

The  bill  is  filed  to  restrain  a  body  of  workmen,  who  are  on  a  strike, 
and  other  persons  associated  with  them,  from  doing  certain  things  which 
are  alleged  to  be  injurious  to  the  complainant,  their  former  employer. 
The  things  that  they  are  restrained  from  doing  are  specified  in  the 
restraining  order.  That  order  was  not  made  hastily.  It  was  for- 
mulated with  care  on  the  part  of  the  court,  and  I  do  not  understand 
that  counsel  for  the  defendant  criticises  its  terms  on  the  ground  that  they 
are  too  broad.  The  defence  is  that  the  persons  who  are  enjoined  have 
not  been  doing,  and  are  not  threatening  now  to  do,  any  of  those  things 
that  are  interdicted.  That  is  the  sum  and  substance  of  the  defence,  which 
has  been  presented  by  a  great  many  affidavits  and  with  very  great  force. 

The  order  does  not  interfere  with  the  right  of  the  workmen  to  cease 
his  employment  for  any  reasons  that  he  deems  sufiicient.  It  does  not 
undertake  to  say  that  workmen  may  not  refuse  to  be  employed  if  certain 
other  classes  of  workmen  are  retained  in  employment.  It  leaves  the  work- 
man absolutely  free  to  abstain  from  work — for  good  reasons,  for  bad 
reasons,  for  no  reasons.  His  absolute  freedom  to  work,  or  not  to  work, 
is  not  in  any  way  impaired.  The  restraining  order  is  based  upon  the 
theory  that  the  right  of  the  workman  to  cease  his  employment,  to  refuse 
to  be  employed,  and  to  do  that  in  conjunction  with  his  fellow- workmen, 
is  just  as  absolute  as  is  the  right  of  the  employer  to  refuse  further  to  em- 
ploy one  man,  or  ten  men,  or  twenty  men  who  have  theretofore  been  in  his 
employment.  From  an  examination  of  the  cases  and  a  very  careful  con- 
sideration of  the  subject  I  am  unable  to  discover  any  right  in  the  courts, 
as  the  law  now  stands,  to  interfere  with  this  absolute  freedom  on  the 
part  of  the  employer  to  employ  whom  he  will,  and  to  cease  to  employ 
whom  he  will ;  and  the  corresponding  freedom  on  the  part  of  the 
workman,  for  any  reason  or  no  reason,  to  say  that  he  will  no  longer 
be  employed ;  and  th6  further  right  of  the  workmen,  of  their  own  free  will, 


V70  JEKSEY  CITY  FEINTING  CO.  v.  CASSIDY       [part  ii. 

to  combine  and  meet  as  one  party,  as  a  unit,  the  employer  who,  on 
the  other  side  of  the  transaction,  appears  as  a  unit  before  them.  Any  dis- 
cussion of  the  motives,  purposes  or  intentions  of  the  employer  in  exer- 
cising his  absolute  right  to  employ  or  not  to  employ  as  he  sees  fit,  or  of 
the  free  combination  of  employes  in  exercising  the  corresponding  absolute 
right  to  be  employed  or  not  as  they  see  fit,  seems  to  me  to  be  in  the  air. 

Thus,  there  is  a  wide  field  in  which  employes  may  combine  and 
exercise  the  arbitrary  right  of  "dictating"  to  their  common  employer 
"how  he  shall  conduct  his  business."  The  exact  correlative  of  this  right 
of  the  employe  exists,  in  an  equal  degree,  in  the  employer.  He  may 
arbitrarily  "dictate"  to  five  thousand  men  in  his  employ  in  regard  to 
matters  in  respect  of  which  their  conduct  ought,  according  to  correct 
social  and  ethical  principles,  to  be  left  entirely  free.  But  if  the 
"dictation"  is  backed  up  solely  by  the  announcement  that,  if  it  is  not 
submitted  to,  the  dictating  party  will  refrain  from  employing,  or  refrain 
from  being  employed,  as  the  case  may  be,  no  legal  or  equitable  right  be- 
longing to  the  party  dictated  to,  which  I  am  able  to  discern,  is  thereby 
invaded. 

It  is  easier,  I  think,  to  obtain  a  correct  idea  of  the  legal  and  equit- 
able right  which  underlies  many  of  the  injunctions  which  have  been 
granted  in  these  strike  cases  restraining  combinations  of  workmen  from 
interfering  with  the  natural  supply  of  labor  to  an  employer,  by  means 
of  molestation  and  personal  annoyance,  if  we  exclude  from  consideration 
the  conduct  of  the  defendants  as  a  cause  of  action  on  behalf  of  the  imme- 
diate victims  of  their  molestation — i.  e.,  of  the  workman  or  workmen 
whom  the  combination  are  seeking  to  deter  from  entering  into  the  em- 
ployment which  is  offered  to  them,  and  which  they,  if  let  alone,  would 
wish  to  accept.  I  say  this,  although  I  firmly  believe  that  the  molested 
workman,  seeking  employment  and  unreasonably  interfered  with  in  this 
efi"ort  by  a  combination,  has  an  action  for  damages  at  common  law,  and, 
where  the  molestation  is  repeated  and  persistent,  has  the  same  right  to  an 
injunction,  in  equity,  which,  under  the  same  circumstances,  is  ac- 
corded to  his  contemplated  employer. 

The  underlying  right  in  this  particular  case  under  consideration, 
which  seems  to  be  coming  into  general  recognition  as  the  subject  of 
protection  by  courts  of  equity,  through  the  "instrumentality  of  an  in- 
junction, appears  to  be  the  right  to  enjoy  a  certain  free  and  natural 
condition  of  the  labor  market,  which,  in  a  recent  case  in  the  House  of 
Lords,  was  referred  to,  in  the  language  of  Lord  Ellenborough,  as  a 
"j)robablo  expectancy."  This  underlying  right  has  otherwise  been  broadly 
defined  or  described  as  the  right  which  every  man  has  to  earn  his  living, 
or  to  pursue  his  trade  or  business,  without  undue  interference,  and  might 
otluTwise  be  descril)0(l  as  the  right  which  every  man  has,  whether  em- 
j)loyer  or  employe,  of  al)so]uto  freedom  to  emjjloy  or  to  be  employed.  The 
peculiar  eleinciit  of  ibis  perhaps  newly-recognized  right  is  that  it  is  an 
interest  whidi  one  man  has  in  the  freedom  of  another.    In  the  case  before 


CHAP.  I.]       JERSEY  CITY  PRINTING  CO.  v.  CASSIDY  771 

this  court  the  Jersey  City  Printing  Company  claims  the  right,  not  only 
to  be  li'ce  in  employing  labor,  but  also  the  right  that  labor  shall  be  free 
to  be  employed  by  it,  the  Jersey  City  Printing  Company. 

A  large  part  of  what  is  most  valuable  in  modern  life  seems  to  depend 
more  or  less  directly  upon  "probable  expectancies."  When  they  fail,  civ- 
ilization, as  at  present  organized,  may  go  down.  As  social  and  industrial 
life  develops  and  grows  more  complex  these  "probable  expectancies"  are 
bound  to  increase.  It  would  seem  to  be  inevitable  that  courts  of  law,  as 
our  system  of  jurisprudence  is  evolved  to  meet  the  growing  wants  of  an 
increasingly  complex  social  order,  will  discover,  define  and  protect  from 
undue  interference  more  of  these  "probable  expectancies." 

In  undertaking  to  ascertain  and  define  the  rights  and  remedies 
,  of  employers  and  employes,  in  respect  of  their  "probable  expectancies" 
in  relation  to  the  labor  market,  it  is  well  not  to  lose  sight  altogether 
of  any  other  analogous  rights  and  remedies  which  are  based  upon  similar 
"probable  expectancies."  It  will  probably  be  found  in  the  end,  I  think, 
that  the  natural  expectancy  of  employers  in  relation  to  the  labor  market 
and  the  natural  expectancy  of  merchants  in  respect  to  the  merchandise 
market  must  be  recognized  to  the  same  extent  by  courts  of  law  and 
courts  of  equity  and  protected  by  substantially  the  same  rules. 

It  is  freedom  in  the  market,  freedom  in  the  purchase  and  sale  of 
all  things,  including  both  goods  and  labor,  that  our  modern  law  is  en- 
deavoring to  insure  to  everj^  dealer  on  either  side  of  the  market.  The 
valuable  thing  to  merchant  and  to  customer,  to  employer  and  to  employe, 
manifestly  is  freedom  on  both  sides  of  the  market.  The  merchant,  with 
his  fortune  invested  in  goods  and  with  perfect  freedom  to  sell,  might  be 
ruined  if  his  customers  were  deprived  of  their  freedom  to  buy;  the  pur- 
chaser, a  householder,  seeking  supplies  for  his  family,  with  money 
in  his  pocket  and  free  to  buy,  might  find  his  liberty  of  no  value 
and  might  suffer  from  lack  of  food  and  clothing  if  the  shopmen 
who  deal  in  these  articles  were  so  terrorized  by  a  powerful  combination 
as  to  be  coerced  into  refusing  to  sell  either  food  or  clothing  to  him. 

It  is,  however,  the  right  of  the  employer  and  employe  to  a  free 
labor  market  that  is  the  particular  thing  under  consideration  in  this 
case. 

A  man  establishes  a  large  factory  where  working  people  reside,  tak- 
ing the  risk  of  his  being  able  to  conduct  his  industry  and  offer  these 
working  people  employment  which  they  will  be  willing  to  accept.  He  takes 
the  risk  of  destructive  competition  and  a  large  number  of  other  risks, 
out  of  which,  at  any  time,  may  come  his  financial  ruin  and  the  suspension 
of  his  manufacturing  works.  But  our  law,  in  its  recent  development, 
undertakes  to  insure  to  him,  not  only  that  he  may  employ  whom 
he  pleases,  but  that  all  who  wish  to  be  employed  by  him  may  enter  into 
and  remain  in  such  employment  freely,  without  threats  of  harm,  with- 
out imreasonable  molestation  and  annoyance  from  the  words,  actions  or 
other  conduct  of  any  X)thcr  persons  acting  in  combination.    What  is  the 


772  JEKSEY  CITY  PRINTING  CO.  v.  CASSIDY       [part  ii. 

measure  or  test  by  which  the  conduct  of  a  combination  of  persons  must 
be  judged  in  order  to  determine  whether  or  not  it  is  an  unlawful  inter- 
ference with  freedom  of  employment  in  the  labor  market,  and  as  such  in- 
jurious to  an  employer  of  labor  in  respect  of  his  "probable  expectancies," 
has  not  as  yet  been  clearly  defined.  Perhaps  no  better  definition  could 
be  suggested  than  that  which  may  be  framed  by  conveniently  using 
that  important  legal  fictitious  person  who  has  taken  such  a  large  part  in 
the  development  of  our  law  during  the  last  fifty  years — the  reasonably 
prudent,  reasonably  courageous  and  not  unreasonably  sensitive  man. 
Precisely  this  same  standard  is  employed  throughout  the  law  of  nuisance 
in  determining  what  degree  of  annoyance  on  the  part  of  one's  neighbor 
one  must  submit  to,  and  what  degree  of  such  annoyance  is  excessive 
and  the  subject  of  an  action  for  damages  or  a  suit  for  an  injunction. 

A  man  may  not  be  liable  to  an  action  for  slander  for  calling  a  workman 
a  "scab"  in  the  street,  but  if  a  hundred  men  combine  to  have  this  work- 
man denounced  as  a  "scab"  in  the  street,  or  followed  in  the  streets  to 
and  from  his  home,  so  as  to  attract  public  attention  to  him  and  place  him 
in  an  annoyingly  conspicuous  position,  such  conduct,  the  result  of  such 
combination,  is  held  to  be  an  invasion  of  the  "probable  expectancy"  of 
his  employer  or  contemplated  employer,  an  invasion  of  this  employer's 
right  to  have  labor  flow  freely  to  him.  Without  any  regard  to  the  rights 
and  remedies  which  the  molested  workman  may  have,  the  injunction 
goes  at  the  suit  of  the  employer  to  protect  his  "probable  expectancy" — 
to  secure  freedom  in  the  labor  market  to  employ  and  to  be  employed,  upon 
which  the  continuance  of  his  entire  industry  may  depend. 

I  think  it  is  safe  to  say  that  all  through  this  development  of  strike 
law,  during  the  last  decade,  no  principle  becomes  established  which  does 
not  operate  equally  upon  both  employer  and  employe.  The  rights  of  both 
classes  are  absolutely  equal  in  respect  of  all  these  "probable  expectancies." 
An  operator  upon  printing  machines  has  the  right  to  offer  his  labor  freely 
to  any  of  the  printing  shops  in  Jersey  City.  These  shops  may  all  combine 
to  refuse  to  employ  him  on  account  of  his  race,  or  membership  in  a  labor 
union,  or  for  any  other  reason,  or  for  no  reason,  precisely  as  twenty 
employes  in  one  printing  shop  may  combine  and  arbitrarily  refuse  to 
be  further  employed  unless  the  business  is  conducted  in  accordance  with 
their  views.  But  in  the  case  of  the  operative  seeking  employment,  he  has 
a  right  to  have  the  action  of  the  masters  of  the  printing  shops,  in  refer- 
ence to  employing  him,  left  absolutely  free.  If,  after  obtaining,  or  seek- 
ing to  obtain,  employment  in  a  shop,  the  master  of  that  shop  should 
be  subjected  to  annoyances  and  molestation,  instigated  by  the  proprietors 
of  other  j)rinting  shops,  who  combine  to  compel,  by  such  molestation  and 
annoyance,  this  one  master  printer,  against  his  will  and  wish,  to  exclude 
the  operative  from  employment,  this  operative,  in  my  judgment,  would 
have  a  right  to  an  action  at  law  for  damages,  and  would  have  a  right 
to  an  injunction  if  his  case  presented  the  other  ordinary  conditions  upon 
which  injunctions  issue.     Uut  the  common  law  courts  have  not  had  time 


CHAP.  I.]        JERSEY  CITY  PRINTING  CO.  v.  CASSIDY  773 

to  speak  distinctly  on  this  subject  as  yet,  and  it  is  necessary  to  be  cau- 
tious in  dealing  with  a  subject  in  which  both  courts  of  law  and  courts  of 
equity  as  yet  are  feeling  their  way. 

I  think  that  the  leading  principle  enforced  in  the  restraining  order 
in  this  case  is  not  inconsistent  with  any  authorities  which  control  this 
court.  This  principle  is  that  a  combination  of  employers,  or  a  combination 
of  employes,  the  object  of  which  is  to  interfere  with  the  freedom  of  the 
employer  to  employ,  or  of  the  employe  to  be  employed  (in  either  of  which 
cases  there  is  an  interference  with  the  enjoyment  of  a  "probable  expec- 
tancy," which  the  law  recognizes  as  something  in  the  nature  of  property), 
by  means  of  such  molestation  or  personal  annoyance  as  would  be  liable  to 
coerce  the  person  upon  whom  it  was  inflicted,  assuming  that  he  is  reason- 
ably courageous  and  not  unreasonably  sensitive,  to  refrain  from  employ- 
ing or  being  employed,  is  illegal  and  founds  an  action  for  damages  on  the 
part  of  any  person  knowingly  injured  in  respect  of  his  "probable  expec- 
tancy" by  such  interference,  and  also,  when  the  other  necessary  condi- 
tions exist,  affords  the  basis  of  an  injunction  from  a  court  of  equity. 

The  doctrine  which  supports  that  portion  of  the  restraining  order  in 
this  case  which  undertakes  to  interdict  the  defendants  from  molesting 
applicants  for  employment  as  an  invasion  of  a  right  of  the  complainant, 
is  apx)licable  to  a  situation  presenting  either  an  employer  or  an  employe 
as  complainant,  and  containing  the  following  elements: 

First.  Some  person  or  persons  desiring  to  exercise  the  right  of  em- 
ploying labor,  or  the  right  of  being  employed  to  labor. 

Second.  A  combination  of  persons  to  interfere  with  that  right,  by 
molestation  or  annoyance,  of  the  employers  who  would  employ,  or  of 
the  employes  who  would  be  employed,  in  the  absence  of  such  moles- 
tation. 

How  far  the  element  of  combination  of  a  number  of  persons  will  finally 
be  found  necessary,  in  order  to  make  out  the  invasion  of  a  legal  or  eqiii- 
table  right  in  this  class  of  cases,  need  not  be  discussed.  We  are  dealing 
with  cases  where  powerful  combinations  of  large  numbers,  in  fact,  exist. 

Third.  Such  a  degree  of  molestation  as  might  constrain  a  person 
having  reasonable  fortitude,  and  not  being  unreasonably  sensitive,  to 
abandon  his  intention  to  employ  or  to  be  employed,  in  order  to  escape 
such  molestation. 

Fourth.  As  the  result  of  the  foregoing  conditions,  an  actual  pecuniary 
loss  to  the  complaining  party,  by  the  interference  with  his  enjoyment 
of  his  "probable  expectancies"  in  respect  of  the  labor  market. 

I  do  not  think  that  the  constraining  force  brought  to  bear  upon  the 
employer  or  employe  which  the  law  can  interdict  can  ever  include  the 
power  of  public  opinion  or  even  of  class  opinion.  Every  man,  whether  an 
employer  or  an  employe,  constitutes  a  part  of  a  great  industrial  system, 
and  his  conduct  is  open  to  the  criticism  of  the  members  of  his  own 
class.  While,  therefore,  a  combination  of  union  men  have  no  right  to 
cry  "scab"  in  the  stre'ets  to  non-union  employes,  or  follow  them  in  the 


774  JEESEY  CITY  FEINTING  CO.  v.  CASSIDY       [part  ii. 

street  in  a  body  to  and  from  their  homes,  or  do  many  other  things  in  com- 
bination, which,  if  done  once  by  a  single  individual,  would  not  found  an 
action  of  tort,  such  combinations,  I  think,  have  left  a  fairly  wide  field 
of  effort  towards  the  creation  and  application  of  public  opinion  as  a 
constraining  force  upon  conduct  of  any  kind  which  they  wish  to  dis- 
courage. 

I  have  endeavored  to  exi^lain,  in  a  general  way,  my  own  view  of  the 
most  important  and  least  understood  principle  embodied  in  the  restrain- 
ing order  in  this  case,  in  order  that  the  defendants,  and,  in  fact,  all 
parties  interested,  may  have  all  possible  light  in  construing  and  applying 
the  exact  terms  of  the  order.  What  I  have  said  may  be  found  to  be  sub- 
ject to  modifications,  without  subjecting  the  terms  of  the  order  to  any 
change.  All  generalizations  on  such  a  subject — such  a  novel  subject  as 
the  one  under  consideration — are  dangerous.  There  may  be  conduct  on 
the  part  of  a  combination  of  employers,  or  of  employes,  which  would 
seem  to  come  within  the  general  definition  or  description  of  illegal  and 
prohibited  conduct,  which  I  have  attempted  to  frame,  but  which  conduct, 
nevertheless,  might  be  justified,  and  hence  could  not  be  adjudged  illegal. 
Molestation  and  personal  annoyance,  however,  the  terms  which  I  have 
employed,  do  not  seem  to  be  inclusive  of  any  justifiable  conduct,  especially 
if  no  one  is  allowed  to  complain  that  he  is  molested  or  annoyed  by  being 
subjected  peaceably  to  the  judgment  and  criticism  of  public  opinion.' 

'See  Coeur  d'Alene  Consolidated  &  Mining  Co.  v.  Miners'  Union,  1892,  51 
Fed.  260,  267. 

The  following  extract  from  the  opinion  of  the  court  in  Union  Pacific  Railway 
Co.  V.  Ruef,  1902,  120  Fed.  102,  seems  to  outline  the  doctrines  generally  pre- 
vailing in  the  majority  of  the  jurisdictions  in  the  United  States : 

"I  believe,  and  that  without  a  doubt,  that,  in  so  far  as  propositions  are 
involved  in  this  case,  the  law  is  as  follows:  (1)  The  defendants  acted  within 
their  right  when  they  went  out  on  a  strike.  Whether  with  good  cause,  or 
without  any  cause  or  reason,  they  had  the  right  to  quit  work  for  the  Union 
Pacific  Railroad  Company,  and  their  reasons  for  quitting  work  were  reasons 
they  need  not  give  to  any  one.  And  that  they  all  went  out  in  a  body,  by 
agreement  or  preconcerted  arrangement,  does  not  militate  against  them  or 
affect  this  case  in  any  way.  (2)  Such  rights  are  reciprocal,  and  the  company 
had  the  right  to  discharge  any  or  all  of  the  defendants,  with  or  without  cause, 
and  it  cannot  be  inquired  into  as  to  what  the  cause  was.  (3)  It  is  im- 
material whether  the  defendants  are  not  now  in  the  service  of  the  company 
because  of  a  strike  or  a  lockout.  (4)  The  defendants  have  the  right  to  combine 
and  work  together  in  whatsoever  way  they  believe  will  increase  their  earnings, 
shorten  their  hours,  lessen  their  labor  or  better  their  condition,  and  it  is  for 
them,  and  they  only,  to  say  whether  they  will  work  by  the  day  or  by  piece 
work.  All  such  is  part  of  their  liberty.  And  they  can  so  conclude  as  indi- 
viduals, or  as  organizations,  or  as  unions.  (5)  And  the  right  is  also  reciprocal. 
The  railroad  company  has  the  right  to  have  its  work  done,  by  the  premium 
or  piece  system,  without  molestation  or  interference  by  defendants  or  others. 
This   is   liberty  for   the  company,   and  the  company   alone   has   the  right  to 


CHAP.  I.]       JERSEY  CITY  PRINTING  CO.  v.  CASSIDY  775 

determine  as  to  that  matter.  (G)  When  the  defendants  went  on  a  strike,  or 
when  put  out  on  a  lockout,  their  relations  with  the  company  were  at  an  end; 
they  were  no  longer  employes  of  the  company;  and  the  places  they  once 
occupied  in  tlie  siiops  were  no  longer  their  places,  and  never  can  be  again, 
excepting  by  mutual  agreement  between  the  defendants  and  the  company. 
(7)  No  one  of  the  defendants  can  be  compelled  by  any  law,  or  by  any  order 
of  any  court,  to  again  work  for  the  company  on  any  terms  or  under  any 
conditions.  ( 8 )  The  company  cannot  be  compelled  to  employ  again  any 
of  the  defendants,  or  any  other  person,  by  any  law,  or  by  any  order  of  any 
court,  on  any  terms,  or  under  any  conditions.  (9)  Each,  all,  and  every  of  the 
foregoing  matters  between  the  company  and  the  defendants  are  precisely  the 
same,  whether  applied  to  the  company  or  to  the  defendants.  (10)  The  com- 
pany has  the  right  to  employ  others  to  take  the  places  once  filled  by  de- 
fendants ;  and  in  employing  others  the  defendants  are  not  to  be  consulted, 
and  it  is  of  no  lawful  concern  to  them,  and  they  can  make  no  lawful  com- 
plaint by  reason  thereof.  And  it  makes  no  difference  whether  such  new 
emploj'es  are  citizens  of  Omaha  or  of  some  other  city  or  State.  A  citizen  of 
Chicago  or  from  any  State  in  the  Union,  has  the  same  rights  as  to  work  in 
Omaha  as  has  a  citizen  of  Omaha.  (11)  Defendants  have  the  right  to  argue 
or  discuss  with  the  new  employes  the  question  whether  the  new  employes 
should  work  for  the  company.  They  have  the  right  to  persuade  them  if  they 
can.  But  in  presenting  the  matter  they  have  no  right  to  use  force  or  violence. 
They  have  no  right  to  terrorize  or  intimidate  the  new  employes.  The  new 
employes  have  the  right  to  come  and  go  as  they  please,  without  fear  or 
molestation,  and  without  being  compelled  to  discuss  this  or  any  other  ques- 
tion, and  without  being  guarded  or  picketed;  and  persistent  and  continued 
and  objectionable  persuasion  by  numbers  is  of  itself  intimidating  and  not 
allowable.  (12)  Picketing  in  proximity  to  the  shops  or  elsewhere  on  the 
streets  of  the  city,  if  in  fact  it  annoj*  or  intimidates  the  new  employes,  is 
not  allowable.  The  streets  are  for  public  use,  and  the  new  employe 
has  the  same  right,  neither  more  nor  less,  to  go  back  and  forth,  freely  and 
without  molestation,  and  without  being  harassed  by  so-called  arguments,  and 
without  being  picketed,  as  has  a  defendant  or  other  person.  In  short,  the 
rights  of  all  parties  are  one  and  the  same." 


INDEX  TO  VOLUME  I. 

Accident,  penalties  and  forfeitures,  399-429. 

Definition  and  nature,   399-403. 

Destroyed  records,  415-417. 

Exceptions  to  rule,  419-429. 

Lost  deeds,  406-411. 

Lost  negotiable  instruments,  411-414. 
Accidental    destruction   of    property   under   contract   of    sale   throws    loss    on 

vendee,  425. 
Ante-nuptial  agreement  enforceable  in  equity  though  not  at  law,   100. 
Assignment  of  mere  possibility  in  equity,   74,  note. 
Choses  in  action,  assignable  at  law,  80. 

By  the  King,  81. 

In  equity,  82. 

Release  after  assignment  formerly,  but  not  now,  good  at  law,  83-84. 
Chancellor,   the,   3. 

Principles   on  which    Chancellor   acted,    16. 
Chancery,  growth  and  development,  5. 

Eeasons  for  applying  to,  14. 

What   is  chancery  proceeding,  21. 
Contribution,  acknowledged  at  law,  though  not  as  full   or  adequate,  42  and 
note;  note,  p.  43. 

Among  sureties  a  natural  as  well  as  contractual  equity,  41. 
Chattel   may  be  specifically  conveyed,   86-93. 
Continuing  trespass   enjoined,   94,   700-717. 
Cancellation  of  an  instrument  invalid  at  law,   104. 
Compromise,  mistake  in,  relieved,  444. 
Conscience,   equity  acts  on,    143-145,   note. 
Consideration  necessary  in  equity,  303. 
Conversion,  310,  313,  315,  594,  641. 
Contribution  among  sureties,  115-117. 
Criminal  jurisdiction  in  equity,  208-232. 
Discovery,  a  remedy  in  equity  in  aid  of  legal  right.  45. 

As  ground,  and  limitation,   117;  notes,   118-120. 
Duress  487-498. 

Arising  from  threat  of  prosecution,  493. 

Divorce  as  means  of  duress,  493. 

In  securing  payment  of  debts  contracted  by  prospective  husband,  487. 

Of  husband  over  wife,  493. 
Duty  of  legatees  to  refund,  361-377. 
Election,  035  et  seq. 
Equitable  estate  of  wife,  66-69. 
Equitable  lien  of  vendor,  71. 

Of  vendee,  73. 


778  INDEX 

Equitable  rights,  309,  642. 

Equity  acts  according  to  established  rules,  144-147,  and  notes,  148-150. 
Equity  acts  in  controvention  of  a   statute,  235. 
Equity  asserts  law,  258. 

Equity  decrees  agreement  to  be  mortgage,  although  agreement  is  in  a  formal 
instrument;   or  formal  conveyance  will  be  decreed  mortgage  if  that 
is  intent  of  parties,  304-310. 
Equity  enforces,  but  neither  changes  nor  creates  contract,  259. 
Equity,  fundamental  theories  and  principles  of,  23-30,  133  ct  seq. 
Equity  gives  no  remedy  if  remedy  is  complete  at  law,  although  judgment  at 

law  is  worthless,   259. 
Equity  gives  remedy  only  where  plaintiff  does  full  equity,  2G4-277. 
Equity  gives  remedy  when  right  exists,  but  remedy  is  lacking  at  law,  255-264. 
Equity  grants  full  relief  when  jurisdiction  is  assumed,  113. 

But  refuses  relief  for  part  to  be  tried  by  jury,  116. 
Equity  in  courts'  of  common  law,   3. 
Equity    jurisdiction,    grounds    of — jvirisdiction    of    part    is    jurisdiction    of 

whole,  113. 
Equity  jurisdiction  is  exclusive,  concurrent,  auxiliary  or  supplemental,  31-57. 
Equity  may  not  enforce  voluntary  agreement,  although  under  seal,  303. 
Equity,  origin,  growth  and  development,  1-30. 
Equity  protects  a  property  right,  149  et  seq. 
Equity  restrains  proceedings  at  law,  250-254. 
Equity  takes  jurisdiction  if  land  is  outside  jurisdiction,  provided  defendant 

is  within  jurisdiction,  235-24G. 
Equity  takes  jurisdiction  if  land  is  within  jvirisdiction,  although  defendant 

is  only  constructively  within  jurisdiction,   246. 
Equity  will  not  act  where  legal  remedy  exists,  133. 

Unless  remedy  be  inadequate  or  doubtful,  134,  and  note,   136. 
Estoppel,  553-593. 

Classification   and   nature  of,   565. 

Does  and  does  not  lie  against  government,  589. 

Does   not  lie  against  public  policy,  587. 

Of  married   women,   576-583. 

Of   minors,   584. 
Fraud  arising  from  necessitous  condition,  479. 

As   ground   of   rescission,    must   exist   at   time   of   transaction,    not   sub- 
sequently, 486. 

Classes  of,  455. 

In  abvise  of  process  of  the  law,  481-486. 

In  a  confidential  or  fiduciary  relation,  469. 

In   agent   against   principal   as  ground   of   relief,   471. 

In  judgment  creditor  renders  purcliase  of  judgment  voidable,  470. 

In  making  of  will,  457. 

In   marriage  agreement,  458,  461,  403. 

Is  a  shield,  not  a  sword,  462,  463. 

Resulting  frmii    imposition,  466. 
Ilcir  is  not  lialile  for  contract  to  convey  of  deceased  tenant  in  tail,  419. 
Heir  is  not  liable  to  attorney  for  lien  against  ancestor's  land,  419. 
Heirloom,  sjiccifu;  conveyance  of,   86. 


INDEX  779 

Inadequacy  of  legal  right  or  remedy,  80-112. 
Injunctions  to  restrain  labor  disputes,  703-775. 

Nuisance,   717-703. 

Trespass,  079-717. 

Waste,  042-078. 
Jurisdiction,    auxiliary,    45-57. 

Concurrent,  41-44. 

Exclusive,   31-41. 

Grounds  of,  58-132. 

Inadequacy  of  legal  right  or  remedy,  80-97. 

No  legal  right  or  remedy,  58-85. 

Not  ousted,  even  although  law  has  adopted  equitable  remedy,  138-143. 
Labor  disputes,  703-775. 

Laches  as  affecting  equitable  right  or  remedy,  377-390. 
Legal  remedy  impracticable,  97-112. 

Because  of  defendant's  change  of  residence,   97. 

Because  of  defendant's  powerful  position,   98-100. 
Legal  remedy  must  be  exhausted,   130. 
Libel  and   slander  in  equity,  228;   note,  232. 
Lien  of  an  attorney  does  not  revive  and  lie  against  heir,  419. 
Limitations,  statute  of,  in  equity,  381-390. 
Lost  deed  or  instrument  set  up  and  enforced  in  equity,  112. 
Maxims   of   equity: 

Equity  acts  in  personam,  233-254. 

There  is  no  right  without  a  remedy,  255-204. 

He  who  seeks  equity  must  do  equity,  204-277. 

He  who  seeks  equity  must  come  with  clean  hands,  278-287. 

Equity  follows  the  law,  288-299. 

Equity  looks  to  the  intent  rather  than  the  form,  300-310. 

Equity  regards  that  as  done  which  ought  to  be  done,  310-324. 

Equity  imputes  an  intent,  324-328. 

Where  the  eqviities  are  equal,  the  one  prior  in  time  shall  prevail,  329-340. 

Where  the  equities  are  equal  the  legal  title  prevails,  340-300, 

Equality  is  equity,  301-377. 

Equity  aids  the  vigilant,  377-390. 
Mistake: 

As  between  vendor  and  vendee  and  rectifications  thereof,  449. 

In  sele<?tion  of  remedy  not  subject  of  relief,  454. 

Involved  in  compromise  relieved  against,  444. 

Of  fact  generally  relieved  against,  437. 

Of  law  ordinarily  not  relieved,  433. 

Of  legal  antecedent  right  may  be  relieved  against,  430-437. 

Reformation  of  contract  for,  447. 
]\Iultiplicity  of  suits  is  ground  of  equity  jurisdiction,  124-132. 
Notice,  498-552. 

Actual  and  constructive,  530-552, 
Nuisance.  717-703. 

Is  legal,  not  equitable,  717. 

Nature  and  kinds  of,  720. 
Per  se,  735.       "^ 


180  INDEX 

Private,  719,  740  et  seq. 
Public,  720-733. 

Purpresture,  may  be  abated,  729. 

Special   interest   in   public   nuisance   permits   private   party  to   file   bill, 
734-740. 

Theories   of  convenience   and   inconvenience    (English),   746-755. 
Intermediate  theory,  756. 
American  theory,  759. 

Water  course,  diversion  of,  740. 
Ornamental  trees,  destruction  of,  waste,  650-654. 
Penalties  and  forfeitures,  403-406. 
Pendente  lite,  520-530. 

Power,  defective  execution  of  aided,  420;  note,  421. 
Power  unexecuted  is  not  aided  unless  coupled  with  trust,  422. 
Privacy,  right  of,  178. 

Property  right  protected  in  equity  and  is  source  of  jurisdiction,  149. 
Purchase  pendente  lite,  520-530. 
Purchaser : 

Bona  fide,  498. 

For  value,  theory  of,  511-520. 

For  value  without  notice  as  a  defence,  507. 

With  notice  from  one  without  notice,  501. 
Reconversion,  611  et  seq. 

Recovery  of  rent  for  premises  seized  by  State,  418. 
Redemption,  allowed  after  law  day,  31. 

Nature  of,  35. 
Reformation : 

And  cancellation  distinguished,  450;  note,  453. 

Necessary  requirements  of,  450. 

Of  instrument  for  mistake,  447. 
Rescission  of  contract  and  injunction  granted  against  suits  at  law,  104-108. 
Slave  will  not  be  specifically  conveyed,  86. 

Will  be  specifically  conveyed,  88. 
Specific  performance  is  a  remedy  peculiar  to  equity,  40. 
Specific   performance   may   be    decreed   although    defendant    has    "disenabled" 

himself  from  performing,  119. 
Specific   performance   of    agreement   though   no   damages   at   law   for   breach, 

101-103. 
Specific  performance,  though  plaintiff  in  default,  103. 
Specific   performance  will  be  decreed  against  heir  where   plaintiff   has   fully 

performe<l  an  oral  contract,  189. 
Statute  of  limitations  in  equity,  381-390. 
Trespass: 

Case  establishing  doctrine  in  England,  697. 

Cases  establishing  law  in  United  States,  088-697. 

Continuing,  94,  706-717. 

Origin  and  developniciii  of  doctrine,  679-687. 

Title  to  premises  should  bo  established  at  law,  according  to  early  cases, 
before  seeking  injunction,  but  in  later  cases  equity  grants  injunction 


INDEX  781 

pending  trial  at  law  or  investigates  and  establislies  title  for  itself  in 
proper  cases,  704-705. 
Trusts : 

Held  enforceable  at  law,  G4. 

Held  unenforceable  at  law,  05  and  note. 

Origin  and  nature  of,  58  ct  seq.;  note,  G0-G2. 
Undue  influence,  474. 

In  confidential  relations,  474;  note,  478. 
Voluntary  conveyance  to  daughter  upon  consideration  good  upon  marriage,  502. 
Waste,  642-678. 

Distribution  of  proceeds,  674-678. 

Does  not  lie  for  past  injury,  642-645. 

In  change  in  building  as  distinct  from  freehold,  667-674. 

Is  destructive,  not  ameliorating,  064-667. 

Malicious  waste,  646  et  seq. 

Who  may  bring  action  for,  655-664. 
Water  course,  diversion  of  is  nuisance,  740. 
Wills,  fraud  in  making  or  procuring,  457- 


^fN^t    '  r    r^  j^^^  LIBRARY 

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